Translation and Commentary by Christopher Kuner
Translation copyright 1997 Christopher Kuner. Reproduction is permitted, provided that this translator's note, including the above copyright notice, is retained in its entirety.
Commentary: This is a translation of the final version of the law which the German government presented to parliament for approval. The law will be debated during the course of 1997, and the government's aim is to have it enacted into law no later than August 1, 1997.
Changes from the previous "Working Draft" of the law of November 8, 1996 are marked in boldface. The chief changes are 1) addition of a paragraph to the data protection provisions stating that a service provider may pass on billing data to a third party which is handling billing for the provider; 2) addition of detailed provisions to implement the EU Database Directive; and 3) deletion of amendments to the "Law on the Protection of Distance Learning".
Article 1
Law on the Use of Teleservices (TDG)
§ 1
Purpose of the Law
The purpose of this law is to create uniform economic conditions for the various uses of electronic information and communication services.
§ 2
Area of Application
(1) The following provisions apply to all electronic information and communication services which are intended for the individual use of combinable data such as characters, pictures, or sounds, and which are based on a telecommunications transmission (teleservices).
(2) Teleservices within para. 1 include:
1. Offers in the area of individual communication (e.g. telebanking and data transfer);
2. Offers for information or communication, insofar as editorial arrangement to influence public opinion is not the primary purpose (data services, e.g. traffic, weather, environmental, and stock information, as well as the dissemination of information concerning goods and services);
3. Offers for the use of the Internet or other networks;
4. Offers for the use of telegames;
5. Offers of goods and services in electronically-accessible data bases with interactive access and the possibility to order directly.
(3) Para. 1 applies irrespective of whether the use of the teleservices is with or without cost, either wholly or partially.
(4) This law does not apply to:
1. Telecommunications services and the commercial provision of telecommunication services under § 3 of the Telecommunications Law of July 25, 1996 (Federal Gazette I, p. 1120);
2. Broadcasting within the meaning of § 2 of the Rundfunkstaatsvertrag.
(5) Legal provisions concerning the press remain unaffected.
§ 3
Definitions
Within the meaning of this law:
1. "Service providers" are natural or legal persons or groups of persons who make either their own or third-party teleservices available for use, or who provide access for such use;
2. "Users" are natural or legal persons or groups of persons who seek to use teleservices.
§ 4
Freedom of Access
Teleservices are free of licensing or notification, within the scope of the laws.
§ 5
Responsibility
(1) Service providers are responsible under the general laws for their own content which they make available for use.
(2) Service providers are only responsible for third-party content which they make available for use if they have knowledge of such content and blocking its use is both technically possible and can be reasonably expected.
(3) Service providers are not responsible for third-party content to which they merely provide access for use. The automatic and temporary storage of third-party content because of a user access constitutes the provision of access.
(4) Any duties to block the use of illegal content according to the general laws remains unaffected, insofar as the service provider gains knowledge of such content while complying with the obligation of telecommunications secrecy under § 85 of the Telecommunications Law, and blocking is both technically possible and can be reasonably expected.
§ 6
Provider Identification Marking
Providers must display the following for their commercial offers:
1. Name and address, as well as
2. Name and address of the authorized representative (in the case of groups of persons).
Article 2
Law Concerning Data Protection in Teleservices (TDDSG)
§ 1
Area of Application
(1) The following provisions apply for the protection of personal data with regard to teleservices within the meaning of the TDG.
(2) Insofar as not otherwise provided in this law, the provisions concerning the protection of personal data which are otherwise applicable shall apply, even if such data is not processed or used in data files.
§ 2
Definitions
Within the meaning of this law:
1. "Service providers" are natural or legal persons or groups of persons, who make either their own or third-party teleservices available for use, or who provide access for such use;
2. "Users" are natural or legal persons or groups of persons who seek to use teleservices.
§ 3
Principles for the Processing of Personal Data
(1) Personal data may only be collected, processed, and used by service providers to perform teleservices if this law or another legal provision so allows or the person affected has given his consent.
(2) The service provider may only use data collected to perform teleservices for other purposes if this law or another legal provision so allows or the person affected has given his consent.
(3) The service provider may not make the provision of teleservices dependent on consent of the user that his data may be processed or used for other purposes.
(4) The design and selection of technical facilities for teleservices shall be oriented toward the goal of collecting, processing, and using either no personal data or as little as possible.
(5) The user shall be instructed concerning the method, scope, place, and purposes of collection, processing, and use of his personal data before it is collected. With regard to automatic processes which make possible a later identification of the user and make preparations for the collection, processing, or use of personal data, the user shall be instructed before this process begins. The content of such instruction must be accessible for the user at all times. The user can waive such instruction. Such instruction and any waiver must be recorded. A waiver does not constitute consent within the meaning of paras. 1 and 2.
(6) The user shall be informed before he gives his consent that he has the right at any time to prospectively revoke such consent. Para. 5, sentence 3 applies accordingly.
(7) Consent may also be given electronically, if the service provider assures that
1. it can only be given by an unambiguous and conscious act of the user;
2. it cannot be indiscernibly changed;
3. its author can be determined;
4. such consent is recorded; and
5. the content of the consent can be revoked at any time by the user.
§ 4
Data Protection Duties of the Service Provider
(1) The service provider shall make it possible for the user to use teleservices and to pay for them either anonymously or using a pseudonym, insofar as this is technically possible and can be reasonably expected. The user shall be informed about this possibility.
(2) The service provider shall insure by technical and organizational means that
1. the user can break off its connection with the service provider at any time;
2. any data concerning the process of retrieval, access, or any other use are deleted immediately after termination, insofar as any further storage is not necessary for billing purposes;
3. the user can make use of teleservices without any third party becoming aware of this;
4. personal data concerning the use of various teleservices by a particular user are processed separately; any combination of such data is not permitted, to the extent that this is not necessary for billing purposes.
(3) The user shall be informed about any further transfer to another service provider.
(4) User profiles are permissible only if pseudonyms are used. Any user profile covered by a pseudonym may not be combined with data concerning the holder of the pseudonym.
§ 5
Contractual Data
(1) A service provider may collect, process, and use personal data of a user to the extent necessary for the existence, substantive structure, or amendment of a contractual relationship with him concerning the use of teleservices (contractual data).
(2) Processing and use of contractual data for purposes of advising, advertisement, market research or structuring technical facilities of the service provider in accordance with need is only permissible if the user has given his express consent.
(3) A service provider shall transfer contractual data upon request of the proper authorities, insofar as this is necessary to prosecute crimes or misdemeanors, to protect against dangers for the public safety or public order, or to fulfill the legal duties of the constitutional protection authorities of the federal government and the federal states, the federal security service, the military security service or the criminal customs authorities.
§ 6
Use Data and Billing Data
(1) The service provider may collect, process, and use personal data concerning the use of teleservices, insofar as this is necessary
1. to make it possible for the user to use teleservices (use data), or
2. to bill for the use of teleservices (billing data).
(2) The service provider shall delete
1. Use data as soon as possible, but at the latest directly following the end of each use, insofar as billing data is not involved;
2. Billing data insofar as it is no longer necessary for billing purposes; billing data pertaining to a particular user which is stored for the creation of detailed bills concerning the use of particular services at the user's request in accordance with para. 4 shall be deleted at the latest 80 days following dispatch of such detailed bill, unless a request for payment is disputed within this period or is not paid despite a demand for payment.
(3) A transfer of use or billing data to another service provider or to a third party is not permitted. A service provider who provides access to the use of teleservices may only transfer the following to other service providers whose teleservices have been used by a particular user:
1. Anonymised use data for the purpose of market research;
2. Billing data, insofar as necessary for the purpose of collecting on a claim.
(4) A service provider that has contracted with a third party concerning billing may transfer billing data to such third party to the extent necessary for this purpose. Such third party shall not be obligated to observe the duty of telecommunications secrecy.
(5) A bill concerning the use of teleservices may not show the provider, time, length, type, content, and frequency of those particular teleservices used by a user, unless the user requests a detailed bill.
§ 7
Informational Rights of the User
The user has the right to view for free at any time on the premises of the service provider stored data concerning his person or his pseudonym. Such information shall also be granted to the user electronically upon his request. Such informational right is not excluded under § 34, para. 4 of the Federal Data Protection Law in the case of temporary storage within the meaning of § 33, para. 2, no. 5 of the Federal Data Protection Law.
§ 8
Data Protection Control
Section 38 of the Federal Data Protection Law shall be applicable, with the proviso that any examination may also be made even if grounds for a violation of data protection provisions do not exist.
Article 3
Digital Signature Law
[The version of the Digital Signature Law contained in the present law is available separately on this site]
Article 4
Amendment of the Criminal Code
The Criminal Code in the version promulgated on March 10, 1987 (Federal Gazette I, p. 945, 1160), last amended by ... (Federal Gazette ...), is amended as follows:
1. Section 11, para. 3 of the Criminal Code shall read as follows:
"(3) Audio and video recording mechanisms, data storage mechanisms, recordings, and other representations shall be the equivalent to writings in those provisions which refer to this paragraph."
2. Section 74d is amended as follows:
a) In § 3 the words "(§ 11 para. 3)" are added after the word "writings".
b) In § 4 the words "the writing (§ 11, para. 3) or" are added after the word "if".
3. In § 86 para. 1 the words "or make publicly available in memory" are added after the word "runs".
Article 5
Amendment of the Law on Misdemeanors
The Law on Misdemeanors as promulgated on February 19, 1987 (Federal Gazette I, p. 602), last amended by .... (Federal Gazette ...), is amended as follows:
1. In § 116 para. 1, § 120 para. 1 no. 2, and § 123 para. 2 sentence 1, a comma and the words "data storage mechanisms" are inserted in each case after the words "video storage mechanisms".
(2) Section 119 is amended as follows:
a) In § 1 no. 2, the words "or by granting public access to data storage mechanisms" are added after the word "representations".
b) In § 3, a comma and the words "data storage mechanisms" are added after the words "video storage mechanisms."
Article 6
Amendment of the Law on the Dissemination of Writings Harmful to Minors
The Law on the Dissemination of Writings Harmful to Minors as promulgated on July 12, 1985 (Federal Gazette I, p. 1502), last amended by ... (Federal Gazette ...), is amended as follows:
1. The name of the law is amended as follows:
"Law on the Dissemination of Writings and Other Media Harmful to Minors"
2. Section 1, para. 3 is amended as follows:
"(3) Audio and video storage mechanisms, data storage mechanisms, pictures and other representations are equivalent to writings".
3. Section 3 is amended as follows:
a) In para. 1, a comma shall replace the period at the end of no. 3, and the following no. 4 is added:
"4. distributed by information or communication services, made available, or otherwise made accessible."
b) The following sentence is added to para. 2:
"Para. 1, no. 4 does not apply if technical measures have been taken so that the offer or the dissemination in Germany can be limited to adult users."
(4) Section 5, para. 3 is amended as follows:
"(3) Paragraph 2 does not apply:
1. if the action takes place in commerce with the relevant trade, or
2. if dissemination to children or minors is excluded by technical or other means."
(5) After § 7, the following § 7a is added:
"§ 7a Youth Protection Officer
Anyone who in the course of business maintains electronic information and communications services available for use which are based on telecommunications transmission shall appoint a youth protection officer, if such services are generally offered to the public and may contain content harmful to minors. Such person is the contact person for users and advises the service provider in questions relating to the protection of minors. The service provider shall consult with him regarding services offered and the structuring of the general conditions of usage. He may suggest to the service provider that certain services be restricted. The service provider may also fulfill its duty under sentence 1 by obligating a voluntary self-control organization to fulfill the functions under sentences 2 through 4."
(6) The following no. 3a is added following § 21, para. 1, no. 3:
"3a. disseminated, made accessible, or otherwise made available in violation of § 3, para. 1, no. 4,"
Article 7
Amendment of the Copyright Law
The Copyright Law of September 9, 1965 (Federal Gazette I, p. 1273), last amended by ... (Federal Gazette ...), is amended as follows:
1. The following section is added following § 69g:
"Ninth Part
Special Provisions for Data Bases
§ 69h
Definition of a Database
A database within the meaning of this law is a collection of works, data, or other independent elements, which are systematically or methodically organized and are separately made available by electronic means or in another way.
§ 69i
Requirement and Subject of Copyright Protection
(1) Databases which represent an individual intellectual product of their author on account of selection or organization of the material are protected as works.
(2) Such protection shall be limited to the copyrightable form of expression of the database, and shall not apply to its contents. Existing rights of protection to the contents, including the right of the maker of a database (§ 87a), shall remain unaffected.
§ 69k
Minimum Rights of Lawful Users
Anyone who is authorized to use a database or a copy of a database does not require consent of the author for acts which are necessary for access to the contents of the database and for normal usage of it. If such person is authorized to use a portion of a database, then the above applies only to access and use of such portion. Any contrary contractual provisions are invalid.
§ 69l
Reproduction for Private Use
Section 53, para. 1, sentence 1 shall not apply to reproduction of a copyrightable form of expression of an electronic database."
2. The following section is added after § 87:
"Sixth Part
Protection of the Makers of Databases
§ 87 a
Object of Protection and Rights of Use
(1) The maker of a database (§ 69h) who has made qualitatively or quantitatively a substantial investment in either the obtaining, verification, or presentation of the contents shall be afforded protection.
(2) The maker has the exclusive right to extract or to re-utilize the whole or a substantial part of the database, evaluated qualitatively or quantitatively. Extraction or re-utilization of a substantial part of the contents of the database is equivalent to repeated and systematic extraction or re-utilization of insubstantial parts of the contents of the database which conflict with normal exploitation of the database or which unreasonably prejudice the legitimate interests of the maker.
(3) Extraction shall mean the permanent or temporary transfer to another medium by any means or in any form. Re-utilization shall mean any form of making available to the public by distribution of copies, including renting, online, or other forms of transmission.
(4) If a copy of a database is placed in circulation with agreement of the lawful owner within the territory of the European Union or of another Contracting State of the Agreement on the European Economic Area within the course of transfer, then further distribution is permissible, with the exception of renting. In the case of public renting (§ 27, para. 2), appropriate compensation shall be paid to the maker, and § 27, para. 3 shall apply accordingly.
(5) The maker can assign the rights granted under § 2 to third parties.
(6) Copyrights and other rights to the database or to its content shall remain unaffected.
§ 87 b
Limitations on Protection of the Maker
(1) A substantial part of the contents of a database which is made available to the public may be used by a lawful user in the following cases without the authorization of its maker:
1. Extraction of the contents of a non-electronic database for private purposes;
2. Extraction for scientific use when appropriate, as long as the source is indicated;
3. Extraction or re-utilization for the purposes of public security or for use in a procedure before a court, an arbitral tribunal, or an administrative body.
(2) If it can be expected based on the type of database that under § 1 No. 1 and No. 2 substantial parts of the contents will be extracted, then §§ 54 though 54h shall apply accordingly with regard to the claim of the maker of the database for payment of appropriate compensation.
§ 87 c
Term of Protection
(1) The right under § 87a expires 15 years following completion of the database. If the database is made available to the public for the first time within this period, then the protection expires 15 years after this time. The period shall be calculated under § 69.
(2) Any substantial change, evaluated qualitatively or quantitatively, to the contents of a database which can be viewed qualitatively or quantitatively as a substantial new investment in the database shall qualify the database for its own term of protection. A substantial change can also result from a series of consecutive changes.
§ 87 d
Rights and obligations of lawful users
(1) Contractual provisions which exclude the right of lawful users of a publicly available database to extract or re-utilize for any purpose insubstantial parts of the contents of the database, either qualitatively or quantitatively, without permission of the maker, shall be invalid.
(2) Lawful users may not perform acts which conflict with normal exploitation of the database or unreasonably prejudice the legitimate interests of the maker."
3. The following sentence shall be added following § 96, para. 1:
"Content which is illegally extracted from a database may not be further used."
4. Section 108, para. 1 shall be changed as follows:
a) In No. 7 the comma shall be replaced by the word "or".
b) The following number shall be added at the end of No. 7:
"8. extracts or re-utilizes the contents of a database in violation of § 87a, para. 2."
5. In § 119, para. 3, the word "and" following the word "photographs" shall be replaced by a comma, and the words "and databases protected under § 87a" shall be inserted following the words "sound-recording mechanisms".
6. The following § 127a shall be inserted following § 127:
"§ 127 a
Protection of Makers of Databases
(1) Protection under § 87a shall apply to makers who are nationals of a Member State of the European Union or a Contracting State of the Agreement on the European Economic Area or who have their habitual residence in the territory of a Contracting or Member State. Section 120, para. 2 No. 1 shall apply.
(2) Protection shall also apply to companies formed in accordance with the law of a Contracting or Member State and having their registered office, central administration or principal place of business within the territory of a Contracting or Member State. Where only the registered office is located in such territory, then the operations of the company must be genuinely linked on an ongoing basis with the economy of a Contracting or Member State.
(3) Other persons or companies enjoy direct protection in accordance with the content of international agreements."
7. The following § 137h shall be added following § 137g:
"§ 137 h
Transitional Provisions for Implementation of the Directive 96/9/EG
(1) The provisions of the Ninth Section of the First Part shall also apply to databases created before January 1, 1989.
(2) The provisions of the Sixth Section of the Second Part shall also apply to databases whose creation was completed between January 1, 1983 and December 31, 1987. In such cases the term of protection begins on January 1, 1998."
Article 8
Amendment of the Price Information Law
The following sentence is added to § 1 of the Price Information Law of December 3, 1984 (Federal Gazette I, p. 1429):
"Rules concerning information on the price of continuing services may also be made with regard to services performed by information and communications services."
Article 9
Amendment of the Price Information Ordinance
The Price Information Ordinance of March 14, 1985 (Federal Gazette I, p. 580), last amended by ... (Federal Gazette ...), is amended as follows:
1. The following sentences are added to § 3, para. 1:
"The screen display is also the place where the service is offered. If a service is rendered by means of screen display and is charged by units, then a special display concerning the price of such continuing usage must be offered at no cost."
2. Section 8, para. 2, no. 2 is changed to read as follows:
"2. of § 3, para. 1, sentence 1, 2, or 4, or para. 2, in each case also in connection with § 2, para. 5, concerning drawing up, providing, or making available price lists, or concerning the offering of a notice of the price,".
Article 10
Return to Uniform Order of the Ordinance
The portions of the Price Information Ordinance which are based on Article 8 may be amended by a legal ordinance based on authority under § 1 of the Price Information Law.
Article 11
Entry into force
This law enters into force on ..., with the exception of Article 7, which enters into force on January 1, 1998.
END