GERMANY
N/A
Pillar Online sales and transactions |
Indicator UNCITRAL Model Law on Electronic Signatures
Lack of adoption of UNCITRAL Model Law on Electronic Signatures
Germany has not adopted national legislation based on or influenced by the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Signatures.
Coverage Horizontal
GERMANY
Since October 2017
Pillar Intermediary liability |
Indicator Monitoring requirement
Act to Improve Law Enforcement in Social Networks (NetzDG)
NetzDG establishes broad requirements for dealing with illegal content and user complaints. Under §3 of the law, platform operators have to remove or block manifestly illegal content within 24 hours after receiving a complaint unless otherwise agreed with the competent law enforcement agency. Other illegal content has to be blocked or removed seven days after receiving a complaint unless the decision whether the content is illegal is contingent on the veracity of a factual claim or the provider has put in place an independent body dealing with these claims. These procedures have to respect due process. Providers who receive more than 100 complaints per year have to submit two reports on these procedures each year (§2 NetzDG). The law has faced criticism from various human rights groups, the United Nations and the Council of Europe, among others. Criticisms include the potential undermining of freedom of speech and expression, vague definitions and arbitrary criteria for removal of content, and disproportionate sanctions for failing to comply.
Coverage Online platforms
GERMANY
Since April 2019
Since June 2021
Since June 2021
Pillar Intermediary liability |
Indicator Monitoring requirement
Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC
Act on the Adaptation of Copyright Law to the Requirements of the Digital Single Market (Gesetz zur Anpassung des Urheberrechts an die Erfordernisse des digitalen Binnenmarktes)
Act on the Adaptation of Copyright Law to the Requirements of the Digital Single Market (Gesetz zur Anpassung des Urheberrechts an die Erfordernisse des digitalen Binnenmarktes)
Art. 17 of Directive 2019/790 on Copyright in the Digital Single Market (DSM Directive) mandates that providers of content-sharing services seek authorisation from rights holders and implement technical solutions to remove and prevent unauthorised uploads by their users (so-called upload filters) under penalty of losing their liability safe harbour. Further arrangements are envisaged for complaints and dispute resolution mechanisms. Such upload filters are reported to be a significant cost for online platforms. Graduated exemptions are expected to be put in place for new providers active in the EU for less than three years with a turnover under EUR 10 million, and with fewer than five million users. The provision is subject to a challenge in the Court of Justice by Poland (C-401/19).
To implement Directive 2019/790, the Bundestag has adopted the Act on the Adaptation of Copyright Law to the Requirements of the Digital Single Market, therefore making online content-sharing service providers partially liable for copyright violations on their platforms.
To implement Directive 2019/790, the Bundestag has adopted the Act on the Adaptation of Copyright Law to the Requirements of the Digital Single Market, therefore making online content-sharing service providers partially liable for copyright violations on their platforms.
Coverage Online content sharing service
Sources
- https://web.archive.org/web/20240503010947/https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1571326093909&uri=CELEX:32019L0790
- https://web.archive.org/web/20210928195709/https://www.bmjv.de/SharedDocs/Gesetzgebungsverfahren/Dokumente/Bgbl_UrhDaG.pdf?__blob=publicationFile&v=2
- https://web.archive.org/web/20210521071910/https://dip21.bundestag.de/dip21/btd/19/274/1927426.pdf
- https://web.archive.org/web/20240224154558/https://www.create.ac.uk/cdsm-implementation-resource-page/
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GERMANY
Since March 2010, entry into force in May 2010, last amended in 2018
Since April 2020, entry into force in November 2020
Since April 2020, entry into force in November 2020
Pillar Quantitative trade restrictions for ICT goods and online services |
Indicator Local content requirements (LCRs) on ICT goods for the commercial market
EU Directive on Audiovisual Media Services (AVMS)
Interstate Treaty on Broadcasting and Telemedia (Medienstaatsvertrag (MStV))
Interstate Treaty on Broadcasting and Telemedia (Medienstaatsvertrag (MStV))
The EU Directive on Audiovisual Media Services (AVMS) covers traditional broadcasting services as well as audiovisual media services provided on-demand, including via the Internet. Art. 13.1 provides for Member States to secure a minimum 30% share of European works in the catalogues as well as "ensuring prominence" of those works. "Prominence" involves promoting European works by facilitating access to such works using any appropriate means to ensure their prominence. The Directive has been implemented by Member States in different ways, ranging from very extensive and detailed measures to a mere reference to the general obligation to promote European works.
In Germany, the EU Directive was transposed into domestic law through the Interstate Treaty on Broadcasting and Telemedia. According to Art. 77 of the Treaty, to represent the diversity in the German-speaking and European regions and to promote European film and television productions, providers of television-like telemedia (VOD) must ensure that the proportion of European works in their catalogues is at least 30%.
In Germany, the EU Directive was transposed into domestic law through the Interstate Treaty on Broadcasting and Telemedia. According to Art. 77 of the Treaty, to represent the diversity in the German-speaking and European regions and to promote European film and television productions, providers of television-like telemedia (VOD) must ensure that the proportion of European works in their catalogues is at least 30%.
Coverage On-demand audiovisual service
Sources
- https://web.archive.org/web/20220308005012/https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32010L0013&from=EN
- https://web.archive.org/web/20231218141041/https://eur-lex.europa.eu/eli/dir/2018/1808/oj
- https://web.archive.org/web/20231211172109/https://www.gesetze-bayern.de/Content/Document/MStV/true#FN1
- https://web.archive.org/web/20240609131307/https://rm.coe.int/iris-plus-2022-2-tables/1680a6889d
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GERMANY
Since December 2020
Pillar Technical standards applied to ICT goods and online services |
Indicator Product screening and additional testing requirements
Act on the Federal Office for Information Security (BSI Act – BSIG) (Gesetz über das Bundesamt für Sicherheit in der Informationstechnik (BSI-Gesetz - BSIG))
§9b of the Act on the Federal Office for Information Security requires that critical components register with the Federal Ministry of the Interior before their first use. The use of these components can be prohibited on three grounds: if the producer is controlled by a third state government, its military or other public authorities, directly or indirectly; if the producer has previously been involved in activities with negative consequences on the public safety or order of the Federal Republic of Germany, other member states of the EU, the European Economic Area or the North Atlantic Treaty; or if the use of the critical component is in contradiction with the security interests of the Federal Republic of Germany, the EU or the North Atlantic Treaty.
Coverage Critical infrastructure, including telecommunications
GERMANY
Since July 2000
Since February 2007
Since February 2007
Pillar Intermediary liability |
Indicator Safe harbour for intermediaries for copyright infringement
Directive 2000/31/EC (E-Commerce Directive)
Telemedia Act (Telemediengesetz)
Telemedia Act (Telemediengesetz)
The Directive 2000/31/EC (E-Commerce Directive) is the legal basis governing the liability of Internet Services Providers (ISPs) in the EU Member States and includes a conditional safe harbour. Not all Member States have transposed the relevant articles consistently, leading to divergent national case law that could cause legal insecurity on an EU level.
Under §7-10 of the Telemedia Act, there are liability exemptions for intermediaries in cases where these have not actively triggered a transmission, chosen its recipient, where they have no knowledge of illegal content or activities or where they immediately remove related content. This broadens the scope of Art. 14 of the EU E-Commerce Directive, which only refers to "knowledge".
Under §7-10 of the Telemedia Act, there are liability exemptions for intermediaries in cases where these have not actively triggered a transmission, chosen its recipient, where they have no knowledge of illegal content or activities or where they immediately remove related content. This broadens the scope of Art. 14 of the EU E-Commerce Directive, which only refers to "knowledge".
Coverage Electronic information and communication services
GERMANY
Since July 2000
Since February 2007
Since February 2007
Pillar Intermediary liability |
Indicator Safe harbour for intermediaries for any activity other than copyright infringement
Directive 2000/31/EC (E-Commerce Directive)
Telemedia Act (Telemediengesetz)
Telemedia Act (Telemediengesetz)
The Directive 2000/31/EC (E-Commerce Directive) is the legal basis governing the liability of Internet Services Providers (ISPs) in the EU Member States and includes a conditional safe harbour. Not all Member States have transposed the relevant articles consistently, leading to divergent national case law that could cause legal insecurity on an EU level.
Under §7-10 of the Telemedia Act, there are liability exemptions for intermediaries in cases where these have not actively triggered a transmission, chosen its recipient, where they have no knowledge of illegal content or activities or where they immediately remove related content. This broadens the scope of Art. 14 of the EU E-Commerce Directive, which only refers to "knowledge".
Under §7-10 of the Telemedia Act, there are liability exemptions for intermediaries in cases where these have not actively triggered a transmission, chosen its recipient, where they have no knowledge of illegal content or activities or where they immediately remove related content. This broadens the scope of Art. 14 of the EU E-Commerce Directive, which only refers to "knowledge".
Coverage Electronic information and communication services
GERMANY
Reported in 2021, last reported in 2023
Pillar Intermediary liability |
Indicator User identity requirement
Mandatory SIM card registration
It is reported that Germany imposes an identity requirement for SIM registration. Anyone wanting to purchase a SIM card has to provide their national ID card or a passport in case of foreigners to activate a new prepaid SIM card.
Coverage Telecommunications sector
Sources
GERMANY
Since June 2016
Since April 2019
Since April 2019
Pillar Intellectual Property Rights (IPRs) |
Indicator Effective protection covering trade secrets
Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets)
Law Transposing Directive (EU) 2016/943 on the Protection of Trade Secrets Against Their Unlawful Acquisition, Use, and Disclosure (Gesetz zur Umsetzung der Richtlinie (EU) 2016/943 zum Schutz von Geschäftsgeheimnissen vor rechtswidrigem Erwerb sowie rechtswidriger Nutzung und Offenlegung)
Law Transposing Directive (EU) 2016/943 on the Protection of Trade Secrets Against Their Unlawful Acquisition, Use, and Disclosure (Gesetz zur Umsetzung der Richtlinie (EU) 2016/943 zum Schutz von Geschäftsgeheimnissen vor rechtswidrigem Erwerb sowie rechtswidriger Nutzung und Offenlegung)
The Directive 2016/943 on the protection of undisclosed know-how and business information (trade secrets) is key in harmonising national laws concerning trade secrets. Germany transposed the Directive in 2018, as well as with the Law transposing Directive (EU) 2016/943 on the protection of trade secrets against their unlawful acquisition, use and disclosure.
Coverage Horizontal
Sources
- https://web.archive.org/web/20240103064602/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32016L0943
- https://web.archive.org/web/20211021144800/https://www.bgbl.de/xaver/bgbl/start.xav?startbk=Bundesanzeiger_BGBl&start=%2F%2F%2A%5B%40attr_id=%27bgbl119s0466.pdf%27%5D#__bgbl__%2F%2F*%5B%40attr_id%3D%2...
GERMANY
Since November 2018
Since May 2014
Since May 2014
Pillar Telecom infrastructure & competition |
Indicator Passive infrastructure sharing obligation
Resolution BK1-17/001 (Beschluss BK1 - 17/001)
Directive 2014/61/EU on measures to reduce the cost of deploying high-speed electronic communications networks
Directive 2014/61/EU on measures to reduce the cost of deploying high-speed electronic communications networks
It is reported that passive sharing is mandated and practised both in the mobile and fixed sectors. To bolster mobile coverage and stimulate infrastructure sharing for MFCN, the Federal Network Agency imposed a specific obligation as part of the frequency award decision BK1-17/001. Upon request by other nationwide assignment holders, assignment holders must, in compliance with telecommunications and antitrust law, engage in negotiations on the shared use of existing nationwide networks (roaming) and about infrastructure sharing. The negotiations should be non-discriminatory. Infrastructure sharing is practised in Germany in the fixed sector and in the mobile sector.
In addition, Directive 2014/61/EU (Art. 3.2) establishes that Member States shall ensure that, upon written request of an undertaking providing or authorised to provide public communications networks, any network operator must meet all reasonable requests for access to its physical infrastructure under fair and reasonable terms and conditions, including price, with a view to deploying elements of high-speed electronic communications networks. Such written request shall specify the elements of the project for which the access is requested, including a specific time frame.
In addition, Directive 2014/61/EU (Art. 3.2) establishes that Member States shall ensure that, upon written request of an undertaking providing or authorised to provide public communications networks, any network operator must meet all reasonable requests for access to its physical infrastructure under fair and reasonable terms and conditions, including price, with a view to deploying elements of high-speed electronic communications networks. Such written request shall specify the elements of the project for which the access is requested, including a specific time frame.
Coverage Telecommunications sector
Sources
- https://datahub.itu.int/data/?i=100014&e=DEU
- https://web.archive.org/web/20220221132838/https://www.bundesnetzagentur.de/EN/Areas/Telecommunications/Companies/FrequencyManagement/InfrastructureSharing/InfrastructureSharing_node.html
- https://web.archive.org/web/20240119164756/https://www.bundesnetzagentur.de/EN/Areas/Telecommunications/Companies/FrequencyManagement/ElectronicCommunicationsServices/start.html
- https://web.archive.org/web/20240329063521/https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32014L0061
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GERMANY
Reported in 2020, last reported in 2023
Pillar Telecom infrastructure & competition |
Indicator Presence of shares owned by the government in telecom companies
Presence of shares owned by the government in the telecom sector
It is reported that the German State holds over a 30% stake in Deutsche Telekom AG. This stake includes 13.8% owned by the Federal Republic and 16.6% by KfW Bankengruppe, a state-owned investment and development bank. Deutsche Telekom AG, based in Germany, is one of the largest telecommunications providers in Europe, operating in over 50 countries worldwide.
Coverage Telecommunications sector
GERMANY
N/A
Pillar Telecom infrastructure & competition |
Indicator Functional/accounting separation for operators with significant market power
Lack of mandatory functional separation for dominant network operators
It is reported that Germany does not mandate functional separation for operators with significant market power (SMP) in the telecom market. However, accounting separation applies to SMP operators in some wholesale markets (e.g. IP bitstream + fibre LLU).
Coverage Telecommunications sector
GERMANY
N/A
Pillar Telecom infrastructure & competition |
Indicator Presence of an independent telecom authority
Presence of independent telecom authority
It is reported that the Federal Network Agency for Electricity, Gas, Telecommunications, Post and Railway (BNetzA), the executive authority for the supervision and administration of services in the telecommunications sector, is independent from the government in the decision-making process.
Coverage Telecommunications sector
GERMANY
Since July 2024
Since November 2019
Since April 2020
Since November 2019
Since April 2020
Pillar Cross-border data policies |
Indicator Ban to transfer and local processing requirement
Social Security Code V (Sozialgesetzbuch (SGB) Fünftes Buch (V))
Social Security Code X (Zehntes Buch Sozialgesetzbuch (SGB X))
Digital Health Applications Ordinance - DiGAV (Digitale Gesundheitsanwendungen-Verordnung - DiGAV)
Social Security Code X (Zehntes Buch Sozialgesetzbuch (SGB X))
Digital Health Applications Ordinance - DiGAV (Digitale Gesundheitsanwendungen-Verordnung - DiGAV)
Section 393 of the German Social Security Code V establishes a requirement for local processing of social and health data via cloud computing services. It stipulates that such processing may only occur within Germany, within a member state of the European Union, or in a third country deemed adequate under Art. 45 of the General Data Protection Regulation (GDPR) or equivalent provisions, provided that the data-processing entity maintains an establishment in Germany. Section 80 of the Social Security Code X and Section 4.3 of the Digital Health Applications Ordinance impose similar geographical restriction on the processing of social data and data related to digital health applications.
Coverage Health sector
Sources
- https://web.archive.org/web/20250812231020/https://www.gesetze-im-internet.de/sgb_5/__393.html
- https://web.archive.org/web/20250812231023/https://www.gesetze-im-internet.de/sgb_10/__80.html
- https://web.archive.org/web/20250621162321/https://www.gesetze-im-internet.de/digav/BJNR076800020.html
- https://web.archive.org/web/20250812231059/https://resourcehub.bakermckenzie.com/en/resources/global-data-and-cyber-handbook/emea/germany/topics/data-localization-and-regulation-of-non-personal-data
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GERMANY
Since October 2002, last amended in December 2022
Pillar Cross-border data policies |
Indicator Local storage requirement
The Fiscal Code of Germany (Abgabenordnung)
Pursuant to Section 146 of the Fiscal Code, financial accounts and records must be kept within Germany. Exceptionally, the competent revenue authority may authorise the storage of electronic accounts data outside of Germany if certain conditions are met (e.g., information is given about the location of the data processing and name of the third party processor; the data remains fully accessible and taxation is not hampered).
Coverage Horizontal
