Germany: German Parliamentary Resolution On Encryption

Last Updated: 18 May 1998
This is taken from Christopher Kuner's homepage Click Contact Link where there are further articles regarding the Law of Electronic and Internet Commerce In Germany.

Translation by Click Contact Link

German Federal Parliament (Bundestag) 
Thirteenth Legislative Period 
Publication No. 13/395 
June 20, 1996 

RESOLUTION of the Committee for Education, Science, Research, Technology, and Technology Assessment (19th Committee) to the TAB Report "Multimedia - Myths, Chances and Challenges"

(Publication No. 13/2475)

Already in May 1995 the Office for Technology and Technology Assessment of the German Federal Parliament (TAB) presented a final report to the preliminary study "Multimedia - Myths, Chances and Challenges". The main focus in particular of this report was the technical framework for use in the business, private and public sectors, the implementation of "multimedia" for the transmission of knowledge, as well as use of language in the media. In order to continue its involvement with such questions, the German Federal Parliament established the commission "Future of the Media in Business and Society - Germany's Way into the Information Society", which also deals with the far-reaching societal changes which are encouraged by the new technologies.

The theme "multimedia" has in the meantime already been dealt with by a number of other reports, in particular:

  • The committee report of the Multimedia Committee of the Parliament of Baden-Wurttemberg of October 1995,
  • The recommendations of the "Council for Research and Technology" of the Federal Government on "The Information Society" of December 1995,
  • The recommendations of the experts of the "Petersberg Circle",
  • the report "Info 2000: Germany's way into the Information Society" of the Federal Government of March 1996.

In particular in reference to the recommendations of the Technology Council of the Petersberg Circle, the Federal Minister for Education and Research has in the meantime presented an outline for a "law on information and communication services", by which all types of multimedia services are to receive uniform federal legal treatment.

Building on the preliminary study of the TAB and the work already performed by the Baden-Wurttemberg commission, the German Federal Parliament supports the task of creating a uniform legal framework in Germany for the use of the new information and communication services. In this respect it considers the following principles to be particularly important:

1. The new uses break the traditional dualism between broadcasting vs. press, mass vs. individual communication, and provider vs. recipient, and fill up the space between them in a seamless manner. As can already be observed today by the example of the global network Internet, the legal focus can therefore rest, depending on the application, at one time in the constitutional competence of the Federal State, and at another time in that of the Federal Government. If one wants to avoid insoluble difficulties caused by attempting to make distinctions in this regard, a strict distinction between such legal and political areas will in the future no longer be possible. The Federal and State Governments must therefore together try to develop appropriate guidelines which are nationally uniform. In this regard, the German Federal Parliament welcomes the efforts of the Federal States and of the Federal Government, which have already begun to clarify such open questions.

2. It is the function of responsible telecommunication and media policies to secure equal access of providers and users to the contents of communication services and to communication channels in a way which covers all geographical areas, and to promote the creation of a modern, future-oriented information infrastructure in the Federal Republic. For this purpose there must be sufficient room to manoeuvre for a provider in a system of free competition, and access to the market (within the scope of other laws) must be guaranteed without any particular permissions or registrations being required. In order to promote the development and spread of new communication services, the transparency of offers and prices must be secured by government measures; the setting of standards by those concerned should be furthered; the conditions for data protection and data security should be improved; copyright law should be adapted in order to create the conditions for the electronic exchange of documents and for legally binding electronic communication; an appropriate, secure infrastructure must be gradually introduced for the use of digital signatures; and the exchange of digital documents and declarations of will must be regulated. In order to secure the confidentiality of cross-border business transactions, effective encryption procedures which may be freely chosen by the participants must be further permitted within the scope of Article 10 of the Basic Law. Where necessary, room for manoeuvre should be created by an experimentation clause for the testing of new technologies and services.

3. By itself, securing access to information does not guarantee the active participation of citizens in the information society, but does constitute the basic requirement therefor. The key to a positive future for Germany (in both the economic and societal sense) lies in the ability of its people to be able to use information both technically and culturally. The German Federal Parliament therefore considers it urgently necessary to increase efforts to encourage the acquisition of media abilities in a cultural sense in general, professional, and work-oriented education and continuing education, in order to provide the greatest number of people with the ability both to make full use of what is presently available, and to actively participate in the structuring of the developing informational structure. The great interest in the project "Schools in the Net" demonstrates both the necessity of such issues and their existing deficits.

4. Many German legal norms can only be effective in a world of global data networks if they can be enforced on an international level. The spreading of materials which are criminally punishable or which may cause harm to young people may therefore only be sufficiently combated in the scope of international co-operation and supra-national structures. Corresponding initiatives on the level of the G7, the EU or other international organisations must therefore be aggressively pursued. In this respect the goal must be punishment of the authors of such material. Since operators who may be held responsible do not exist in international computer networks such as the Internet, and the spreading of information may therefore not be geographically limited, there is no need to go farther and to hold those who provide access to and secure functions of data networks responsible for the criminal acts of third parties, or to extend the application of German criminal law beyond the boundaries recognised in international law. An extension of the liability rules and mechanisms from the areas of the press, film, and protection of young people would also not attain the desired effect. Mechanisms of voluntary self-control on the part of providers and users might however present one solution; examples are the system of "Netiquette" in the Internet, the voluntary establishment of rating systems, and agreements regarding the duty to identify content. Punishment of crimes however still remains one of the basic responsibilities of the State; placing such duties on private parties would burden them with responsibilities with they cannot fulfil.

5. Implementation of their right to informational self-determination in trans-national data traffic is one of the most important requirements for the use and spread of new information and communication services. If the most sensitive private, medical, or business related data is transmitted by telecommunication, then privacy in telecommunications becomes a strategic constitutional right. The protection of sensitive information must therefore be guaranteed against unlawful access by third parties and against impermissible attacks on the part of both governments and business. In order to attain this, a reform of German data protection law and co-operation on the international level is necessary. To the extent possible, collection of data must be avoided and the anonymity of the parties must be protected. In addition, it must be insured that personal data may not be gathered or may not be processed against the will of the person concerned. Provisions of data protection should also not be able to be evaded by means of the trans-national transmission of data. Of course, it must also be permissible to consent to the use of one's own data for a purpose which is precisely delineated or to process such data in an appropriate manner.

6. Based on the recommendations of the Office for Technology Assessment, the German Federal Parliament calls on the Federal Government to scientifically investigate the possible effects of the change to an information society in all areas of society, in particular in the areas of law, the economy, employment, and education. In this respect the results of the various multimedia projects must also be taken into account.

Visit Christopher Kuner's homepage Click Contact Link for more articles regarding the Law of Electronic and Internet Commerce In Germany.

For further information, please contact

Christopher Kuner/Markus Deutsch
Gleiss Lutz Hootz Hirsch Rechtsanwalte
Gartnerweg 2, 60322 Frankfurt/Main
Fax No: ++49/69/95514-198
Tel No: ++49/69/95514-106
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The article is correct to the best of our knowledge at the time of publication. However, the legal situation at the administrative practice of the Regulatory Authority may be subject to changes. Therefore, the article is only a general guide. Specialist advise has to be sought as regards your specific circumstances.

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