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”

Mondaq Advice Centre (MACs)
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.