German Telemedia Act introduces new rules for New Media

05 March 2007

Henning Krieg

The new German Telemedia Act is anticipated to come into force in March 2007. The Act introduces new measures aimed at spam prevention, data protection and the enforcement of intellectual property rights. However, it fails to deal with the pressing issue over the extent of the responsibility of Telemedia Service providers to monitor third party content they host.

The Bundestag – the German parliament – has recently passed the new "Telemediengesetz" (the Telemedia Act), which will replace the German Teleservices Act, the Teleservices Data Protection Act and the Federal Media Services Treaty expected to come into force in March 2007. The new Act will govern all electronic information and communication services except pure telecommunication and broadcasting (so-called "Telemedia Services"). Therefore, the new laws will apply to webshops, mobile commerce, newsgroups, music download platforms, video on demand (VOD), internet search engines, emails and even simple company websites, but not to live-streaming of video, web-casting, IPTV (Internet Protocol TV) or VoIP (Voice Over Internet Protocol - internet telephony).

The new Telemedia Act has already been heavily criticised, not least because it leaves some pressing issues unresolved. All companies who provide Telemedia Services should nevertheless take a closer look at the new rules, because they introduce new duties to which Telemedia Service providers will be subject. Furthermore, owners of intellectual property rights are provided with a powerful new tool to aid enforcement where their rights are infringed using Telemedia Services.

One of the aims of the Telemedia Act is spam prevention. For this reason, the newly introduced section 6(2) of the Act states that the sender's name and the subject of a commercial email must not conceal the sender's identity or the commercial nature of the email. Breaches may be punished with fines up to €50,000. Since the bigger part of spam mails is sent by foreign senders, the provision will be of limited effect. In addition, responsibility for enforcing this provision lies, for example, with the district authorities, who will probably be overstretched by the task. However, despite these limitations the Bundestag wants to send a sign that it is willing to fight the problem of unsolicited commercial emails.

Section 13 of the Telemedia Act establishes certain duties of Telemedia Service providers with respect to data protection. For example, Telemedia Service providers have to inform users in detail about the "character, extent and reason" of the collection and processing of user-related data.

Another aim of the Telemedia Act is to make it easier to demand disclosure of user data from Telemedia Service providers. According to section 14(2) of the Act, Telemedia Service providers will have to produce user data, such as user names or addresses, upon request of the German secret services. Moreover, the provision states that such user data can also be demanded if necessary for the enforcement of intellectual property rights. This provides owners of intellectual property rights with an effective tool to identify individuals who infringe their rights using Telemedia Services.

The Telemedia Act has also attracted extensive comment, however, in relation to what it fails to deal with. What the new Act does not change are the rules concerning the liability of a Telemedia Service provider for third party content it hosts. The E-Commerce Directive intends to avoid a general obligation on service providers to monitor third party content. However, such a duty can – according to a ruling of the German Federal Court of Justice – still exist under German law under the concept of liability as a "disquietor" ("Störer"). The Telemedia Act does not resolve this discrepancy - the Bundestag choosing instead to await further developments at the European level. Therefore, the possible scope of liability of Telemedia Service providers which deal with third party content and services (such as online auctions and market places, discussion boards and user generated content platforms) still needs further clarification. Furthermore, the Bundestag decided not to extend the application of exclusions from liability in the E-Commerce Directive to internet search engines and hyperlinks, as was demanded by many legal observers.