Germany to harmonise dp law in electronic commerce

12 July 2005

Jan-Peter Ohrtmann

The German legislator has drafted a new Act to harmonise the statutory law regarding the specific data protection provisions in electronic commerce.

Currently the collection, processing and use of personal data by electronic media is subject to two different legal codes: The Federal Tele Services Data Protection Act (“Teledienstedatenschutzgesetz”) addressing the communication to individuals and the Media States Treaty (“Mediendienste-Staatsvertrag”) of the single German states (“Länder”), dealing with the communication to the general public.

This structure results in part from the constitutional framework in Germany whereby the Länder have legislative competence for communication to the general public. However, it is generally agreed that the current legal situation is inappropriate. There is no convincing argument for why electronic communication to individuals and to the general public is subject to separate data protection laws. Practically, the current legal situation for data protection law lacks some clarity on the distinction between electronic communication and telecommunications. This becomes especially relevant for services like e-mail, internet access and VoIP which are both electronic commerce services as well as telecommunications services.

After extended discussions the Federal government and the Länder are now close to finding a solution to this situation. The Länder are willing to repeal the Media States Treaty so that the whole field of data protection in electronic media will be covered by one proposed Federal Act, the Electronic Commerce Harmonisation Act (“Elektronischer-Geschäftsverkehr-Vereinheitlichungsgesetz“). If enacted this Act will merge the existing data protection provisions of the Teledienstedatenschutzgesetz and the Mediendienste-Staatsvertrag and clarify the boundaries of telecommunication data protection provisions.

The enactment will require some additional time as Federal elections in Germany are scheduled for autumn 2005. However, an enactment would be a positive step as it would improve the clarity and reliability of German data protection law in electronic commerce.