Germany: New Media - The Draft German "Information and Communication Services Law"

Last Updated: 15 January 1999
For over a year the German government has been drafting a law to bring its legal system into line with the requirements of the "Information Age". This was originally called the "Multimedia Law", and a preliminary draft was released in July 1996. Since it was felt that the term "multimedia" was too vague, the title was then changed to "Information and Communications Services Law". A semi-final draft of this new law (hereinafter referred to by its German acronym "IuKDG") was released for public comment on November 8, 1996, and it is this version which will be commented on here. The IuKDG is composed of 12 articles; in some cases the articles themselves constitute individual laws, while in others they amend pre-existing laws. A translation of the draft is appended to this article.

Article 1:

This is the so-called "Law on the use of Teleservices" or "TDG". This law is designed "to create uniform economic conditions for the various uses of electronic information and communication services" (s1), and sets forth several important general principles regarding the use and provision of online services in Germany. "Teleservices" are defined very broadly (s2(2)), and the term is likely to include nearly all types of online services, including telebanking, electronic data bases, Internet access, the offer of good and services over the Internet, etc. The law provides that teleservices do not need to be licensed (s4), but does provide certain legal restrictions for their use. Most importantly, s5 sets forth liability rules for Internet content. In general, service providers are responsible for content which they themselves provide, and not responsible for third party content to which they merely provide access, but are 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".

The provisions regarding responsibility have met with varying reactions in Germany. On the one hand, they finally provide some criteria for determining the responsibility of service providers, which is to be welcomed, while on the other hand they seem rather vague, so that it is not clear to what extent they will actually improve the present legal situation for service providers (Compuserve has, for example, sharply criticised these provisions).

Article 2:

This is the so-called "Law concerning Data Protection in Teleservices", and is designed to provide some clarity with regard to the obligations of service providers in the data protection area (general German data protection law continues to apply to teleservices to the extent that they are not regulated in this law). The main principle of the law is that "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" (s3(1)). The provision of teleservices may not be made dependent on a person giving such consent (s3(3)), and users of teleservices must be instructed regarding the collection of personal data (s3(5)). Most importantly, consent may now be made electronically, which was previously not allowed under German data protection law; this may, for example, allow the use of digital signatures in the giving of such consent (s3(7)). The service provider must make it possible for teleservices to be paid for either unanimously or using a pseudonym (s4). Different conditions are set on the use of "contractual data", "use data", and "billing data" (õs5 and 6). Service providers need to study the data protection provision of the law closely, as it will impose important new burdens on them.

Article 3:

This is the "Digital Signature Law", and is by far the longest article of the IuKDG, taking up about half of its length. The Digital Signature Law has been revised intensively by the government in a series of drafts over the last few months, and is likely to undergo further changes before being presented to parliament for approval. Because of its length and complexity, it is not possible to give a detailed examination of the Digital Signature Law here, so that only a few salient characteristics can be mentioned.

The law is designed to regulate the general technical conditions for the use of digital signatures in Germany, and does not address a number of important legal questions which have so far hindered their acceptance, such as the frequent requirement in German law that documents be "in writing", meaning that they must be recorded on paper. The law sets forth a strict regulatory framework in order to ensure public confidence in the security of digital signatures, and provides procedures for the granting of licenses for certification authorities (referred to in the law as "certifiers", s4)

Observers familiar with digital signature laws from other jurisdictions (e.g. from the US) may be surprised by the absence of detailed provisions regarding liability; while this has been criticised to some extent in Germany (e.g. by consumer groups), it is justified by the government on the grounds that German law already contains general provisions on tort liability that will likely be sufficient for any problems which arise. On the key question of how users of digital signatures are to be identified by certifiers, the law has a general provision which only requires that they be identified "reliably" (s5(1)); this will likely result in procedures already in use in Germany for identification, such as presentation of a passport or identity card at the opening of a bank account. The law provides for an "government authority" to regulate the use digital signatures and to provide such services as stepping in if a certifier goes out of business; this is likely to be the regulatory body for the telecommunications industry set forth in the new German telecommunications law, which was recently passed. The Digital Signature Law further provides specific data protection provisions, and sets forth requirements for the use of technical components in digital signatures (õs13 and 14).

An important question relates to use of technical components and certificates which come from outside Germany. The law sets forth different criteria for such requirements and for certificates coming from inside and outside the EU; while EU technical components and certificates can be recognised based on a level of security substantially similar to that in Germany, non-EU certificates require the conclusion of an international agreement between Germany and the appropriate foreign jurisdiction in order for them to be recognised within Germany (s14(5) and s15). While this differentiation may be understandable owing to Germany's requirements under EU law, it is regrettable in that it will likely slow down the acceptance and use of digital signatures in Germany, as it will require a long and complex process of negotiating international agreements between Germany and foreign jurisdictions. The Digital Signature Law further provides for the adoption of an Ordinance (s16), which will be presented to parliament for approval together with the Digital Signature Law.

Article 4, 5, and 6:

During the recent controversy involving investigations of Internet service providers in Germany by public prosecutors, it came to light that German criminal law contains a number of gaps, so that, for example, information provided by online services does not always fall within laws which criminalize the dissemination of certain types of information (e.g. information harmful to minors). These articles contain amendments to the Criminal Code, the Law on Misdemeanors, and the Law on the Dissemination of Writings Harmful to Minors, so that information provided on computer networks in the future will come within such laws. Of particular interest for online service providers is a new s7a to be added to the Law on the Dissemination of Writings Harmful to Minors which will require individual service providers to appoint a "youth protection officer" responsible for advising them in questions relating to the protection of minors.

Article 7:

This article provides for amendment of the German Copyright Law in order to implement the EU Database Directive. Previously, under German copyright law a database which is a mere collection of facts was often difficult to bring under the definition of a copyrightable "work". The amendments now provide for such protection, as well as allowing certain exceptions, such as for reproduction for private use.

Article 8:

In drafting the Digital Signature Law, it was, as described above, decided not to make wholesale changes to German legal requirements which require a writing on paper; rather, the decision was made to make a couple of individual exceptions in order to test whether a general "electronic form" could be introduced in German law to supplement the traditional written form. One of these exceptions is in this article, which amends the "Law on the Protection of Distance Learning" so that "electronic declarations of will" (such as digital signatures) can be used.

Articles 9 and 10:

These articles amend the German "Price Information Law" and "Price Information Ordinance" to provide rules for giving information on screen regarding the provision of online services.

The IuKDG will continue to be the subject of negotiations between the government and the parliamentary opposition, so that changes (particularly in regard to data protection) are likely by the time it is finally enacted into law. The government's plan at present is to present a final version of the law to the federal cabinet some time in late December. The law will then be the subject of parliamentary debate in negotiation throughout early 1996, and will hopefully be enacted into law in the summer of 1997.

This article is correct to the best of our knowledge at the time of its publication. However, it is written as a general guide, and specialist advice should therefore be sought regarding specific questions.

For further information, please contact Christopher Kuner, Gleiss Lutz Hootz Hirsch & Partners, Gartnerweg 2, 60372 Frankfurt, Germany, Fax number 49-69-95514198, e-mail

The article is correct to the best of our knowledge at the time of publication. However, it is written as a general guide. Therefore specialist advice should be sought as regards your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions