Country Report Germany

8/2/2019 Country Report Germany

1/6BUSINESS SOFTWARE ALLIANCE 1

Country report: Germany


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Q Germany response explanatory text

Data pr IVaCy

1. Are there laws or regulationsgoverning the collection, useor other processing o personalinormation?

4 The main legislation is the Federal Personal Data Protection Act 2001(Bundesdatenschutzgesetz) (BDSG). However, a number o additional Data ProtectionActs apply at the state level in Germany.

2. What is scope & coverage oprivacy law?

Comprehensive Germany has comprehensive privacy laws or both the public and private sector.

3. Is the privacy law compatible withthe Privacy Principles in the EUData Protection Directive?

4 The Federal Personal Data Protection Act 2001 implements the EU Data ProtectionDirective in German law.

4. Is the privacy law compatible withthe Privacy Principles the APECPrivacy Framework?

4 The German legislation is equivalent to, or more ar reaching than the APEC PrivacyPrinciples.

5. Is an independent private right oaction available or breaches odata privacy?

Available The German Constitution provides personality rights which are broadly equivalentto privacy rights. These rights were upheld by the European Court o Human Rights inthe high prole case: Von Hannover v Germany [2004] ECHR 294

6. Is there an eective agency(or regulator) tasked with theenorcement o privacy laws?

SectoralRegulator

In Germany, privacy authorities or the private sector exist at the state level eachwith a Commissioner responsible or one state. A Federal Commissioner has a role inrelation to Government agencies.

7. What is the nature o the privacyregulator?

SoleCommissioner

The 16 data protection authorities are listed at .

8. Are data controllers ree romregistration requirements?

6 Notication requirements are in place or most data processing. However, some limitedexemptions apply where the organization has an internal data controller in place andthe processing is low risk.

9. Are cross border transers ree romregistration requirements?

4 Organizations can only transer data to a non-EU country i that country ensures anadequate level o protection. However, a long list o exceptions is in place, includingreliance on consent and contractual arrangements.

10. Is there a breach notication law? Organizations must notiy the data protection authority and data subjects i a breachoccurs which threatens serious harm to the data subjects rights or legitimate interests.However, this rule only applies or certain l imited categories o data, including datasubject to proessional secrecy, data relating to criminal or administrative oences, andbank or credit card accounts data.





SeCurIty

1. Is there a law or regulation thatgives electronic signatures clearlegal weight?

4 The Digital Signature Act 2001 sets out the rules or using electronic signatures that willreceive the same legal status as hand-written signatures. The Act is complemented bythe Ordinance on Electronic Signatures 2001. which sets out the rules or establishingcertication authorities and minimum technical requirements or digital signatures.

2. Are ISPs and content serviceproviders ree rom mandatoryltering or censoring?

Germany has strict censorship laws in place relating to specic online content principally holocaust denial and related content. These laws are regularly enorced bythe state courts.

More recent plans to introduce mandatory Internet ltering (aimed principally at onlinechild pornography) were abandoned in April 2011. This coincided with a preliminarydecision by the advocate general o the European Court o Justice which statesthat no ISP can be orced to lter the Internet, as this would breach European privacyand human rights laws. (The advocate generals preliminary opinion is not the nalruling). Although that ruling relates to ltering or copyright enorcement, it is beinginterpreted as having potential application to all mandatory ltering. The decision isavailable at .

3. Are there laws or enorceablecodes containing generalsecurity requirements or digital

data hosting and cloud serviceproviders?

Limitedcoverage inLegislation

The data protection legislation states that organizations must implement technicaland organizational measures to ensure the security o inormation. Measures must bereasonable in relation to the desired level o protection.

4. Are there laws or enorceablecodes containing specic securityaudit requirements or digitaldata hosting and cloud serviceproviders?

None There are no specic security audit requirements in Germany. However, security auditrequirements have been proposed on several occasions in the ederal Parliament, andthe Government currently recommends voluntary compliance with national inormationsecurity audit guidelines.

5. Are there security laws andregulations requiring speciccertications or technologyproducts?

Comprehensiverequirements

(includingcommon criteria)

Germany is a Certicate Authorizing Member (the highest level) o the CommonCriteria Recognition Agreement (CCRA) , andcertication requirements in Germany are common.

CyBerCrIme

1. Are there cybercrime laws in place? 4 The German Criminal Code contains comprehensive provisions on computer crime andcybercrime.

2. Are cybercrime laws consistentwith the Budapest Convention onCybercrime?

4 Germany ratied the Council o Europe Convention on Cybercrime in 2009.

3. What access do law enorcementauthorities have to encrypted dataheld or transmitted by data hostingproviders, carriers or other serviceproviders?

Access with awarrant

Certain government entities are authorized to request passwords and encryption keysunder Section 113 o the Telecommunications Act. However, the inquiries may only beused to identiy the person who generated a certain communication or connection at acertain point in time.

4. How does the law deal withextraterritorial oenses?

Comprehensivecoverage

German law, backed by the Courts, has very broad coverage o extraterritoriality orcybercrimes. This is largely the result o specic court cases relating to holocaust denialsites (illegal in German law), but is likely to have wider application to other cybercrimes.Generally any cybercrime which has an impact in Germany will be held to be within

jurisdiction, even in the absence o other physical links with the jurisdiction.

InteLLeCtuaL property rIGHtS

1. Is the country a member o the

TRIPS Agreement?4 Germany became a member o the TRIPS Agreement in 1995.

2. Have IP laws been enacted toimplement TRIPS?

4 Germany has implemented the TRIPS agreement in local laws.

3. Is the country party to the WIPOCopyright Treaty?

4 Germany signed the WIPO Copyright Treaty in 1996, ratied it in 2009 and it enteredinto orce in Germany in March 2010.

4. Have laws implementing the WIPOCopyright Treaty been enacted?

4 The Urhebergesetz (Copyright Act) has been updated several times to incorporate theprovisions o the WIPO Copyright Treaty.

5. Are civil sanctions available orunauthorized making available(posting) o copyright holdersworks on the Internet?

4 Section 19(A) o the German Copyright Act was introduced in 2003. It includes specicprovisions where an individual makes available works in a le-sharing network withoutholding the rights to them.





6. Are criminal sanctions availableor unauthorized making available(posting) o copyright holdersworks on the Internet?

In some limited circumstances criminal sanctions may be available or making availablecopyright works. However, criminal sanctions will usually be restricted to serious cases,such as a criminal conspiracy to interere in the property rights o others.

7. Are there laws governing ISPliability or content that inringescopyright?

4 This is governed in the European Union by the EU E-commerce Directive (2000/31/EC) and in Germany, the Telemedia Act2007.

8. Is there a basis or ISPs to be heldliable or content that inringescopyright ound on their sites orsystems?

Article 8 o the Telemedia Act expressly states that access providers are not legallyresponsible or their customers content unless they collaborate with users in breakingthe law.

However, courts have continued to disagree on whether web-hosting businesses andaccess providers can be made liable under the concept o Strerhatung (liability othe intererer), dened in the Civil Code (or example, in Sections 862 and 1004) asintererence with the property o others.

9. What sanctions are available orISP liability or copyright inringingcontent ound on their site orsystem?

Civil Civil sanctions are clearly available, although liability will depend on the level oinvolvement by the ISP.

Criminal sanctions are unlikely, although they may be used in a serious case involving acriminal conspiracy to deliberately interere with the property rights o others.

10. Must ISPs takedown contentthat inringes copyright, uponnotication by the right holder?

4 Under Article 10 o the Telemedia Act:Service providers shall not be responsible or the inormation o third parties which

they store or a recipient o a service, as long as1. they have no knowledge o the illegal activity or the inormation and, as regards

claims or damages, are not aware o any acts or circumstances rom which the illegalactivity or the inormation is apparent, or2. upon obtaining such knowledge, have acted expeditiously to remove the

inormation or to disable access to it.Article 10(1) shall not apply when the recipient o the service is acting under the

authority or control o the service provider.

11. Are ISPs required to inormsubscribers upon receiving anotication that the subscriber isusing the ISPs service to distributecontent that inringes copyright?

6 There are no particular obligations on ISPS. Notication obligations all on rightsholders which may send several warning letters to alleged inringers.

12. Is there clear legal protectionagainst misappropriation o cloudcomputing services, includingeective enorcement?

Comprehensiveprotection

Germany has eective privacy legislation, comprehensive cybercrime legislation, andreasonable IP protection. The combination o these laws provides clear protection orcloud computing services in Germany.

InteroperaBILIty

1. Are there laws, regulationsor policies that establish astandards setting ramework orinteroperability and portability odata?

4 Standards setting in Germany is subject to Government sectoral policy rather thanlegislation. Most tasks have been delegated to the German Institute or Standardization by contract.

2. Is there a regulatory bodyresponsible or standardsdevelopment or the country?

4 The German Institute or Standardization (Deutsches Institut r Normung (DIN)) is contracted by the German government to manage standards development,certication and accreditation.

InternatIonaL HarmonIZatIon oF ruLeS

1. Are e-commerce laws in place? 4 The Act on Framework Conditions or Electronic Commerce was passed in 2001.

2. What international instruments arethe e-commerce laws based on?

UNCITRALModel Law onE-Commerce

The Act on Framework Conditions or Electronic Commerce 2001 implements theEU E-Commerce Directive into German law. The Directive is largely based on theUNCITRAL Model Law on E-Commerce.

3. Is the downloading o applicationsor digital data rom oreign cloudservice providers ree rom tari orother trade barriers?

4 There are no relevant taris or other barriers in Germany.

4. Are international standards avoredover domestic standards?

4 Germany avors and implements EU standards and international standards in mostsectors.

5. Does the government participatein international standards settingprocess?

4 The German Institute or Standardization represents Germany on theInternational Standards Organization and Germany is an active participant in theinternational standards process.





promotInG Free traDe

1. Are there any laws or policies inplace that implement technologyneutrality in government?

4 The German Regulation on the Award o Public Contracts (updated in 2009) promotesa technology neutral approach to all procurement, subject to some limited exceptions.

2. Are cloud computing services

able to operate ree rom lawsor policies that mandate the useo certain products (including,but not limited to types osotware), services, standards ortechnologies?

4 There are no mandatory requirements in place in Germany.

3. Are cloud computing servicesable to operate ree rom laws orpolicies that establish preerencesor certain products (including,but not limited to types osotware), services, standards, ortechnologies?

The Federal Bureau or Inormation Technology (BIT) has madesome ormal recommendations which provide a preerence or certain open sourceproducts or Government agencies (2009) reer to the Competence Center OpenSource Sotware in the Federal Oce or Inormation Technology (BIT) o the FederalAdministrative Oce promotion o Open Source Sotware (OSS) in the ederaladministration . The likely impact on cloud computing is limited.

4. Are cloud computing servicesable to operate ree rom laws

that discriminate based on thenationality o the vendor, developeror service provider?

4 There are no laws in Germany that discriminate based on the nationality o vendors.

Germany is a member o the WTO plurilateral Agreement on Government

Procurement.

InFraStruCture, StatIStICS anD InDICatorS

1. Is there a National BroadbandPlan?

By 2014, 75%o householdsto havedownloadspeeds o 50Mbps.

In February 2009 the German Federal Ministry o Economics and Technology releasedthe Breitbandstrategie der Bundesregierung (Broadband Strategy o the FederalGovernment) ,with the ollowing targets:

Accelerate telecommunication and internet connectivity, close gaps in underservedareas by the end o 2010,

By 2015, 75% o households will have download speeds o 50 Mbps.

The allocated budget or the Broadband Strategy over 4 years rom 2010 to 2014 isEUR250 million ederal and state unding plus unds earmarked by municipalities/localauthorities.

Germanys stated method in realizing these national broadband targets is throughcompetition, technology and supplier diversity requiring participating ederal, state,local and industry involvement with implementation.

The Broadband Strategy identied 600,000 households (mostly in rural areas) that werenot yet served by broadband connectivity. The German government has stated thatadditional unding may be required to supply rural areas with high speed broadband.

Germanys approach is shaped by a:

Priority or private investment and decentralized solutions: Germany believes thatthe main share o a national broadband rollout can and should be achieved throughprivate sector investment in a decentralized process driven by a variety o players.

Primary role o the public sector is to acilitate private investment: The guidingprinciple o Germanys Federal Broadband Strategy is that the public sector shouldconcentrate on creating conditions, which are conducive to private investment andlimit direct intervention.

Germanys strategy has been the subject o criticism, stating the medium-term targeto 50Mbs or 75% o households by 2015 can only be achieved through the rollouto ber which is so ar available in only about 1 percent o German households.Commentators have suggested that a comprehensive ber roll-out would require a 10-15 year national plan and cost EUR10-20 billion.

Note: The European Commission has set targets or all European households to havedownload speeds o at least 30 megabits per second (Mbps) by 2020, and by 202550% o households at 100 Mbps.





2. Are there laws or policies thatregulate the establishment odierent service levels or datatransmission based on the nature odata transmitted?

Regulationunder

consideration bygovernment andextensive public

debate

Germany appears to be more reticent than its European neighbors in considering andadopting policies to promote network neutrality. There has been extensive debate onthe issues (and the overturned blocking o Skype trac in 2009) but there have beenno rm proposals to include or exclude principles o net neutrality at this stage.

The EU is actively considering options to manage net neutrality issues. In April 2011 thendings rom a public consultation on The Open Internet and Net Neutrality in Europewere released . Final recommendations may be issued in late 2011. This mayhave an impact on the implementation o net neutrality principles in member countries.

3. Base Indicators

3.1. Population (2010) 82,302,465 [International Telecommunication Union (ITU), World Telecommunication/ICT IndicatorsDatabase (June 2011) ]

3.2. Urban Population (%) (2010) 74% [World Bank, Data Catalog, Indicators, Urban Population % (2011) ]

3.3. Number o Households (2009) 39,255,000 [International Telecommunication Union (ITU), World Telecommunication/ICT IndicatorsDatabase (2009) ]

3.4. Population Density (people persquare km) (2010)

234 [World Bank, Data Catalog, Indicators, Population Density (2011) ]

3.5. Per Capita GDP (USD 2010) $40,631 [International Monetary Fund (IMF), World Economic Outlook Database (April 2011)

]3.6. ICT expenditure as % o GDP

(2008)5% [World Bank, Little Data Book on ICT (2009) ]

3.7. Personal Computers (% ohouseholds) (2010)

86% In 2010, 85.7% o households in Germany have personal computers. This is a 4.8%increase since 2008.

[International Telecommunication Union (ITU), Measuring the Inormation Society (2011)Measuring the Inormation Society (2011)]

4. ICT and Network Readiness Indicators

4.1. ITU ICT Development Index (IDI)(2010)(Score is out o 10 and includes 152countries)

7.27 Germany has an ICT Development Index (IDI) score o 7.27 (out o 10), resulting in arank o 15 (out o 152 economies). The 2010 IDI or Germany has improved rom a ranko 13 since 2008.


4.2. World Economic Forum NetworkedReadiness Index (20102011)(Score is out o 7 and includes 138countries)

5.14 Germany has a Networked Readiness Index (NRI) score o 5.14 (out o 7), resulting in anoverall rank o 13 (out o 152 economies) and a rank o 13 in the high income groupingo countries/economies.

[World Economic Forum, The Global Inormation Technology Report (20102011)]

4.3. International Connectivity Score(2011)(Score is out o 10 and includes 50countries)

6.27 Germany has a Connectivity Score o 6.27 (out o 10), resulting in a rank o 13 (out o25) in the Innovation-driven grouping o countries/economies.

[Nokia Siemens, Connectivity Scorecard (2011) ]

4.4. IT Industry Competitiveness Index(2011)(Score is out o 100 and includes 66countries)

64.10 Germany has an IT Industry Competitiveness Index Score o 64.1 (out o 100), resultingin a rank o 15 (out o 66 countries/economies included in the index). The 2011 indexscore is a 8.5% increase on the 2009 score. Germany has moved up the ranking by 5places since 2009.

[Business Sotware Alliance (BSA) / Economist Intelligence Unit (EIU), IT IndustryCompetitiveness Index (2011) ]

5. Internet Users and International Bandwidth

5.1. Internet Users (2010) 67,405,719 [calculated rom 8.3.1. and 8.5.2.]

5.2. Internet Users as Percentage oPopulation (2010)

82% In 2010, 81.9% o the population in Germany used the Internet. This is a 5.1% increasesince 2008.






5.3. International Internet Bandwidth(bits per second per internet user)(2010)

74,223 Germany has increased its International Internet Bandwidth (per Internet user) by 59%since 2008.


5.4. International Internet Bandwidth(2010) (total gigabits per second(Gbps) per country)

5,003 [calculated rom 8.5.3 and 8.5.1]

6. Fixed Broadband

6.1. Fixed Broadband Subscriptions(2010)

26,000,000 [International Telecommunication Union (ITU), World Telecommunication/ICT IndicatorsDatabase (June 2011) ]

6.2. Fixed Broadband Subscriptions as% o households (2010)

66% Note: this is skewed by business usage (reer to OECD comments about this)

[calculated rom 8.3.3. and 8.6.1.]

6.3. Fixed Broadband Subscriptions as% o population (2010)

32% Germany has increased its Fixed Broadband Subscriptions (as a % o the population) by15% since 2008.

The OECD gures below present a breakdown on the type o broadband connectionsin Germany.

In the OECD, Germany is ranked 10 (out o 34) or Fixed (Wired) Broadband

Subscribers as a percentage o population [OECD Broadband Subscribers (Dec 2010) http://www.oecd.org/sti/ict/broadband]

DSL: 28.1%

Cable: 3.5%

Fiber/LAN: 0.1%

Other: 0.1%

Total: 31.9% (26,089,800 subscriptions) and this represents a 5% increase rom 2009.The OECD average total is 24.9%.

Note: There may be minor variations in the ITU and OECD subscriber totals due todenition, timing or population baseline dierences.


6.4. Fixed Broadband Subscriptions as% o Internet users (2010) 39% [calculated rom 8.5.1 and 8.6.1]

7. Mobile Broadband

7.1. Mobile Cellular Subscriptions(2010)

104,560,000 Note: This gure may be infated due to multiple subscriptions per head o population,but excludes dedicated mobile broadband devices (such as 3G data cards, tablets, etc)

[International Telecommunication Union (ITU), World Telecommunication/ICT IndicatorsDatabase (June 2011) ]

7.2. Active mobile-broadbandsubscriptions per 100 inhabitants(2010)

36% Germany has increased the number o Active Mobile-Broadband Subscriptions (as a %o the population) by 72% since 2008.

The OECD gures below present a breakdown on the type o mobile broadbandconnections in Germany.

In the OECD, Germany is ranked 25 (out o 34) or Terrestrial Mobile WirelessBroadband Subscribers as a percentage o population [OECD Broadband Subscribers(Dec 2010) http://www.oecd.org/sti/ict/broadband]

Satellite: 0.1%

Terrestrial xed wireless: 0%

Standard mobile broadband subscription: 16.5%

Dedicated mobile data subscriptions: 9.4%

Total: 26% (21,272,150 subscriptions). The OECD average total is 41.6%.

Note: The mobile broadband subscription types were rst reported by OECD in 2010.Currently the ITU data does not have this granularity.

Note: The OECD gures include mobile data subscriptions, whereas this is not countedin the ITU gures.

7.3. Number o Active mobile-broadband subscriptions per 100inhabitants (2010)

38,059,840 [International Telecommunication Union (ITU), Measuring the Inormation Society (2011)Measuring the Inormation Society (2011)]

Country Report Germany

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