Telemedia Law

Original Language Title: Telemediengesetz

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Telemedia Act (TMG)

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TMG

Date of completion: 26.02.2007

Full quote:

" Telemediengesetz vom 26. Februar 2007 (BGBl. 179), which is provided by Article 4 of the Law of 17 July 2015 (BGBl. I p. 1324).

Status: Last amended by Art. 2 sec. 16 G v. 1.4.2015 I 434
Note: Amendment by Art. 4 G v. 17.7.2015 I 1324 (No 31) in a textual proof, not yet concludedly processed in a documentary form

For more details, please refer to the menu under Notes
Article 1 of this Act is designed to implement Directive 2000 /31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular the electronic Business, internal market (OJ C 327, 22.4. EC No L 178 p. 1).
Article 1 (5) (1) and (7) also serves to implement Directive 2003 /58/EC of the European Parliament and of the Council of 15 July 2003 amending Council Directive 68 /151/EEC as regards the disclosure requirements of companies of certain legal forms (OJ L 327 EC No L 221 p. 13).
The obligations laid down in Directive 98 /34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of the provisions relating to the services of The Information Society (OJ C EC No 37), as amended by Directive 98 /48/EC of the European Parliament and of the Council of 20 July 1998 (OJ L 136, 31.5.1998, p. EC No 18), have been observed.

Footnote

(+ + + Text evidence from: 1.3.2007 + + +) 
(+ + + Official note from the norm-provider on EC law:
Implementation of the
ERL 31/2000 (CELEX Nr: 32000L0031)
ERL 58/2003 (CELEX Nr: 32003L0058)
Consideration of
ERL 34/98 (CELEX Nr: 31998L0034)
Implementation of the
EGRL 65/2007 (CELEX Nr: 32007L0065) + + +)

The G was decided as Article 1 of the G v. 26.2.2007 I 179 of the Bundestag. It's gem. Art. 5 sentence 1 of this G iVm Bek. v. 1.3.2007 I 251 entered into force on 1 March 2007.

Section 1
General provisions

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§ 1 Scope

(1) This Act applies to all electronic information and communication services, insofar as they are not telecommunications services in accordance with § 3 n. 24 of the Telecommunications Act, which are wholly in the transmission of signals over telecommunications networks. , telecommunications-based services according to § 3 No. 25 of the Telecommunications Act or broadcasting pursuant to § 2 of the Broadcasting State Treaty (Telemedia). This law applies to all providers, including public authorities, irrespective of whether a fee is charged for use. (2) This law does not apply to the area of taxation. (3) The Telecommunications Act and the Press Law (4) The special requirements to be addressed to the content of telemedia are derived from the State Treaty for Broadcasting and Telemedia (Broadcasting State Treaty). (5) This Act does not apply to any international law or regulation in the field of international broadcasting. Private law still regulates the jurisdiction of the courts. (6) The Special provisions of this Act for Audiovisual Media Services shall not apply to services which:
1.
are intended exclusively for reception in third countries, and
2.
not directly or indirectly from the general public with commercially available consumer equipment in a Member State within the scope of Council Directive 89 /552/EEC of 3 June 1992. 1 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 23), as last amended by Directive 2007 /65/EC (OJ L 298, 17.10.2007, p. 27), which has been amended on 18 December 2007, p.
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§ 2 Definitions

For the purposes of this Act
1.
Service provider is any natural or legal person who provides his or her own or other telemedia for use or which provides access for use; in the case of audiovisual media services on demand, service providers are any natural or legal person Person who effectively controls the selection and design of the content offered,
2.
, established service provider shall be any supplier who, by means of a fixed facility, offers or provides telemedia for an indefinite period of time; the location of the technical facility alone does not justify the establishment of the provider;
3.
User is any natural or legal person who uses telemedia, in particular to obtain or make available information,
4.
distribution services are telemedia, which are provided simultaneously for an unlimited number of users by means of a transfer of data without an individual request,
5.
Commercial communication shall mean any form of communication which shall mean the direct or indirect promotion of the sale of goods, services or the appearance of a company, other organisation or natural person , which carries on an activity in the trade, trade or craft sector or profession; the transmission of the following information does not constitute a form of commercial communication as such:
a)
information enabling direct access to the activity of the company or the organization or person, such as, in particular, a domain name or an address of the electronic mail,
b)
Information relating to goods and services or the appearance of a company, organisation or person, made independent and in particular without financial compensation.
6.
"audiovisual media services on demand" means telemedia with content similar to television content in terms of form and content and which is provided by a service provider for individual retrieval at a time chosen by the user and from a service provider shall be made available.
A legal person is the same as a civil society, endowed with the ability to acquire rights and to enter into liabilities. Unofficial table of contents

Section 2a European Seat

(1) Within the scope of Directive 2000 /31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal market (OJ C 3 EC No 1), the seat of the service provider shall be determined by the place where the service provider actually carries out its business. This is the place where the service provider's activities are focused on a specific range of telemedia services. (2) Within the scope of Directive 89 /552/EEC, audiovisual media services are to be established. Retrieve the seat of the service provider
a)
after the place of principal place of business, provided that there is effective control over the audiovisual media service, and
b)
in the place where an essential part of the staff entrusted with the provision of the audiovisual media service is active, provided that the effective control of the audiovisual media service is not carried out in the Member State of the European Union or a third country where the place of the principal place of business is situated; it cannot be established that a substantial part of the personnel entrusted with the provision of the audiovisual media service at a given location , the seat shall be determined by the location of the principal place of establishment.
Where the conditions referred to in paragraph 2 (a) or (b) do not apply, the seat of the service provider shall be determined within the scope of Directive 89 /552/EEC by the place where he first works in accordance with the provisions of the law (4) audiovisual media service providers, on demand, where no country of seat is located within the territory of the Member State in which they are situated, in accordance with paragraphs 2 and 3. Whereas the scope of Directive 89/552/EEC may be established; German law, provided that:
a)
a satellite ground station located in Germany for the uplink or
b)
the transmission capacity of a satellite belonging to Germany.
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§ 3 of the country of origin principle

(1) Service providers established in the Federal Republic of Germany according to § 2a and their telemedia are subject to the requirements of German law even if the telemedia in another state within the scope of the guidelines 2000 /31/EC and 89 /552/EEC. (2) The freedom to provide services of telemedia services offered or provided by service providers in the Federal Republic of Germany which are provided in another Member State by a State within the scope of Directives 2000 /31/EC and 89 /552/EEC are not restricted. Paragraph 5 shall remain unaffected. (3) The provisions of paragraphs 1 and 2 shall be without prejudice to:
1.
the freedom of choice,
2.
the rules on contractual obligations in relation to consumer contracts;
3.
statutory provisions relating to the form of acquisition of land and equal rights, and the justification, transfer, amendment or cancellation of rights in rem on land and equal rights,
4.
the law applicable to the protection of personal data.
(4) Paragraphs 1 and 2 shall not apply to:
1.
the activities of notaries and members of other professions, to the extent that they are also active in the field;
2.
the representation of clients and the perception of their interests in court,
3.
the admissibility of unsolicited commercial communications by electronic mail,
4.
prize games with a value-added value for gambling, including lotteries and betting,
5.
the requirements for distribution services;
6.
copyright, related rights, rights within the meaning of Council Directive 87 /54/EEC of 16 December 1986 on the legal protection of topographies of semiconductor products (OJ L 378, 27.12.1986, p. EC No 36) and to Directive 96 /9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (OJ L 327, 22.11.1996, p. EC No 20) and industrial property rights,
7.
the issuing of electronic money by institutions established pursuant to Article 8 (1) of Directive 2000 /46/EC of the European Parliament and of the Council of 18 September 2000 on the taking up, pursuit and prudential supervision of the activities of electronic money institutions 1. EC No 39) from the application of some or all of the provisions of this Directive and from the application of Directive 2000 /12/EC of the European Parliament and of the Council of 20 March 2000 on the taking up and pursuit of the business of credit institutions 1. EC No 1),
8.
agreements or practices which are subject to antitrust rules;
9.
the areas covered by Articles 12, 13a to 13c, 55a, 83, 110a to 110d, 111b and 111c of the Insurance Supervision Act and the Insurance Reporting Regulation, the rules governing the law applicable to insurance contracts, and the rules applicable to insurance contracts. Compulsory insurance.
(5) By way of derogation from paragraph 2, the offer and the provision of telemedia by a service provider established in another State within the scope of Directives 2000 /31/EC or 89 /552/EEC shall be subject to the limitations of the national law, insofar as this is the protection of
1.
public security and public order, in particular with regard to the prevention, investigation, investigation, prosecution and enforcement of criminal offences and administrative offences, including the protection of minors and the fight against the networks for reasons of of race, sex, religion or nationality, as well as violations of human dignity of individual persons, as well as the safeguarding of national security and defence interests,
2.
public health,
3.
the interests of consumers, including the protection of investors,
harm or serious and serious risks, and the measures to be taken on the basis of national law shall be proportionate to these protection objectives. See the procedure for the initiation of measures pursuant to the first sentence, with the exception of judicial proceedings, including any pre-trial proceedings and the prosecution of criminal offences, including criminal enforcement and administrative offences. Article 3 (4) and (5) of Directive 2000 /31/EC, as well as Articles 2a (4) and 5 of Directive 89 /552/EEC, consultation and information obligations.

Section 2
Freedom of authorisation and information obligations

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§ 4 Freedom of admission

Telemedia is subject to the laws of admission and registration. Unofficial table of contents

§ 5 General information requirements

(1) Service providers have the following information easily recognizable, directly accessible and permanently available for commercial telemedia, which is usually offered for remuneration:
1.
the name and address under which they are established, in the case of legal persons, in addition to the legal form, the authorized representative and, where information is provided about the capital of the company, the basic or basic capital and, where: not all deposits to be paid in cash are paid, the total amount of outstanding deposits,
2.
information enabling rapid electronic contact and direct communication with them, including the address of electronic mail;
3.
insofar as the service is offered or provided in the course of an activity which requires official authorisation, information on the competent supervisory authority,
4.
the trade register, register of associations, partnership registers or the register of cooperatives in which they are registered, and the corresponding register number,
5.
in so far as the service is carried out in the course of an occupation within the meaning of Article 1 (d) of Council Directive 89 /48/EEC of 21 December 1988 on a general system for the recognition of higher education diplomas, which provides for at least three years ' vocational training complete (OJ L 327 EC No 16), or within the meaning of Article 1 (f) of Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of vocational training qualifications, supplementing Directive 89 /48/EEC (OJ L 327, 31.12.1992, p. EC No 25, 1995 No L 209 p. 20), as last amended by Commission Directive 97 /38/EC of 20 June 1997 (OJ 1997 L 17, p. 1). EC No L 184 p. 31), provided or provided, information on:
a)
the Chamber to which the service providers belong,
b)
the legal professional title and the state in which the professional title has been awarded,
c)
the description of the professional regulations and how they are accessible,
6.
in cases where they have a VAT identification number in accordance with § 27a of the VAT Act or an economic identification number in accordance with § 139c of the German Tax Code, the indication of this number,
7.
in the case of limited liability companies, limited liability companies for shares and limited liability companies which are in liquidation or liquidation, the disclosure of such shares shall be indicated.
(2) Further information obligations under other legislation shall remain unaffected. Unofficial table of contents

§ 6 Special information requirements for commercial communications

(1) Service providers shall have at least the following conditions in the case of commercial communications, telemedia or telemedia components:
1.
Commercial communications must be clearly identified as such.
2.
The natural or legal person on whose behalf commercial communications are carried out must be clearly identifiable.
3.
Promotional offers such as discounts, allowances and gifts must be clearly identifiable as such, and the conditions for their use must be easily accessible and clearly and unambiguously indicated.
4.
Advertising or promotional games with an advertising character must be clearly identifiable as such and the conditions of participation must be easily accessible, as well as clearly and unambiguously indicated.
(2) If commercial communications are sent by electronic mail, neither the sender nor the commercial character of the message may be veiled or concealed in the header and subject line. A concealment or concealment occurs when the head and subject line are intentionally designed in such a way that the recipient does not have any or misleading information about the actual identity prior to inspection of the content of the communication. of the sender or the commercial character of the message. (3) The provisions of the law against unfair competition remain unaffected.

Section 3
Responsibility

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§ 7 General principles

(1) Service providers are responsible for their own information, which they hold for use, in accordance with general laws. (2) Service providers within the meaning of § § 8 to 10 are not obligated to transmit or store the data transmitted or stored by them. To monitor information or to search for circumstances that indicate illegal activity. Obligations to remove or block the use of information in accordance with the general laws remain unaffected even in the event of the service provider's non-responsibility in accordance with § § 8 to 10. The secrecy of telecommunications according to § 88 of the Telecommunications Act is to be uphold. Unofficial table of contents

§ 8 Information passing on information

(1) Service providers shall not be responsible for any foreign information they transmit in a communications network or to which they provide access to the use, provided that they:
1.
the transmission does not lead to:
2.
shall not select the addressee of the information transmitted; and
3.
the information provided has not been selected or changed.
Sentence 1 shall not apply where the service provider intentionally collaborates with a user of his/her service in order to commit unlawful acts. (2) The transmission of information referred to in paragraph 1 and the provision of access to them also includes the automatic short-term interim storage of this information, insofar as this is only done to carry out the transmission in the communication network and the information is no longer stored than for the transmission of such information. is usually required. Unofficial table of contents

§ 9 Intermediate storage for the accelerated transmission of information

Service providers are not responsible for automatic, time-limited interim storage, which alone serves the purpose of making the transmission of foreign information to other users on their request more efficient, not responsible, provided that they are
1.
do not change the information,
2.
comply with the conditions for access to the information,
3.
observe the rules for updating the information laid down in widely recognised and used industry standards;
4.
the permitted use of technologies for the collection of data on the use of the information laid down in widely recognised and used industry standards; and
5.
act immediately in order to remove or block access to information stored within the meaning of this provision, as soon as they have been informed that the information at the original source of transmission from the network is has been removed or the access to them has been blocked, or a court or administrative authority has ordered the removal or blocking.
Section 8 (1) sentence 2 shall apply accordingly. Unofficial table of contents

§ 10 Storage of information

Service providers shall not be responsible for any foreign information they store for a user, provided that:
1.
they have no knowledge of the unlawful act or of the information and, in the case of claims for damages, they are not aware of any facts or circumstances from which the unlawful act or the information becomes apparent, or
2.
they have become active immediately in order to remove or block access to information as soon as they have become aware of it.
Sentence 1 shall not apply if the user is under the service provider or is supervised by him.

Section 4
Data protection

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§ 11 Provider-User-Relationship

(1) The provisions of this Section shall not apply to the collection and use of personal data of the users of Telemedia, insofar as the provision of such services
1.
in the service and employment relationship for exclusively professional or service purposes, or
2.
within or between non-public authorities or public sector bodies exclusively for the control of work or business processes.
(2) Users within the meaning of this Section shall be any natural person who uses telemedia, in particular to obtain or make available information. (3) In the case of telemedia, the majority of which are in the transmission of signals via telecommunications networks , the collection and use of personal data of the users shall be subject to the provisions of Section 15 (8) and Section 16 (2) (4). Unofficial table of contents

§ 12 Principles

(1) The service provider may only collect and use personal data for the provision of telemedia, in so far as this law or any other piece of legislation which expressly refers to telemedia, permits or agrees to the user's consent (2) The service provider may use personal data collected for the provision of telemedia for other purposes only in so far as this law or any other piece of law expressly referring to telemedia may be used or permitted to do so by the service provider. the user has consented. (3) Unless otherwise specified, the shall apply in accordance with applicable rules on the protection of personal data, even if the data are not processed automatically. Unofficial table of contents

§ 13 Duties of the service provider

(1) The service provider shall have the user at the beginning of the use process on the nature, scope and purpose of the collection and use of personal data as well as on the processing of its data in states outside the scope of the Directive 95 /46/EC of the European Parliament and of the Council of 24 1 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ C EC No 31) in a generally comprehensible form, provided that such information has not already been provided. In the case of an automated procedure, which allows the user to be identified later and prepares a collection or use of personal data, the user shall be informed at the beginning of this procedure. The content of the information must be available at any time to the user. (2) The consent may be declared electronically if the service provider ensures that:
1.
the user has given his consent in a clear and unambiguous way,
2.
the consent is recorded,
3.
the user can access the content of the consent at any time, and
4.
the user can revoke the consent at any time with effect for the future.
(3) The service provider shall draw the attention of the user to the right referred to in paragraph 2 (4) prior to the declaration of consent. The third sentence of paragraph 1 shall apply. (4) The service provider shall, through technical and organisational arrangements, ensure that:
1.
the user can terminate the use of the service at any time,
2.
the personal data arising from the expiry of the access or other use are deleted immediately after termination of the data or are blocked in the cases of the sentence 2,
3.
the user can use telemedia for the protection of third parties,
4.
the personal data relating to the use of various telemedia services may be used separately by the same user,
5.
data according to § 15 (2) can only be combined for accounting purposes and
6.
Usage profiles according to § 15 para. 3 cannot be combined with information on the identification of the bearer of the pseudonym.
The deletion of the deletion pursuant to sentence 1, no. 2, shall be replaced by a blocking, insofar as a deletion is contrary to statutory, statutory or contractual retention periods. (5) The transfer to another service provider shall be the user (6) The service provider has to allow the use of telemedia and its payment anonymously or under a pseudonym, insofar as this is technically possible and reasonable. The user is to be informed about this possibility. (7) As far as this is technically possible and economically reasonable, service providers have, within the scope of their respective responsibility for telemedia offered by business, by technical and organisational arrangements to ensure that:
1.
no unauthorised access to the technical facilities used for their telemedia services is possible and
2.
These
a)
against breaches of the protection of personal data and
b)
against disturbances, even as far as they are caused by external attacks,
are secured. Arrangements in accordance with the first sentence shall take account of the state of the art. A measure according to the first sentence is in particular the application of a encryption method recognized as safe. (8) The service provider has the user, in accordance with § 34 of the German Federal Data Protection Act, on request information on the person to whom he/she is responsible. or to give data stored in its pseudonym. At the request of the user, the information can also be issued electronically. Unofficial table of contents

§ 14 Inventory data

(1) The service provider may only collect and use the personal data of a user, insofar as it is for the justification, content design or modification of a contractual relationship between the service provider and the user via the use (2) On the order of the competent authorities, the service provider may, on a case-by-case basis, provide information on the stock data, insofar as this is necessary for the purposes of law enforcement, the security of the security of the Police authorities of the Länder, in order to fulfil the legal tasks of the Federal and state constitutional protection authorities, the Federal Intelligence Service or the Military shielding service or the Federal Criminal Police Office as part of its mission to avert the dangers of international terrorism or to enforce it the intellectual property rights are required. Unofficial table of contents

§ 15 Usage data

(1) The service provider may only collect and use the personal data of a user, insofar as this is necessary in order to enable the use of telemedia and to be deducted (usage data). Usage data are in particular:
1.
Characteristics for the identification of the user,
2.
information about the beginning and the end and the extent of the respective use; and
3.
Information about the telemedia used by the user.
(2) The service provider may bring together user data of a user via the use of various telemedia services, insofar as this is necessary for billing purposes with the user. (3) The service provider may, for the purposes of advertising, the If the user does not object, market research or the design of the telemedia user profiles in accordance with demand when using pseudonyms is to be created. The service provider shall draw the attention of the user to his/her right of objection in the context of the information according to § 13 (1). These usage profiles may not be merged with data about the bearer of the pseudonym. (4) The service provider may use usage data beyond the end of the use process, insofar as it is used for the purposes of billing with the user. are required (accounting data). In order to comply with existing statutory, statutory or contractual retention periods, the service provider may block the data. (5) The service provider may transmit billing data to other service providers or third parties, insofar as this is the case. Determination of the fee and for billing with the user is required. If the service provider has concluded a contract with a third party for the payment of the remuneration, it may transmit accounting data to that third party insofar as it is necessary for that purpose. For the purposes of market research of other service providers, anonymized usage data may be transmitted. Section 14 (2) shall apply. (6) The billing of the use of telemedia may not reveal the provider, time, duration, nature, content and frequency of certain telemedia services used by a user, whether or not they are (7) The service provider may, at the most until the end of the process, be able to process accounting data processed for the creation of individual proof of the use of certain offers at the request of the user. of the sixth month after the dispatch of the invoice. If objections are raised against the payment claim within this period or are not paid in spite of the request for payment, the accounting data may be stored until the objections have been finally resolved or the (8) The actual evidence to be documented by the service provider is that its services are used by certain users on the basis of the intention not to pay the fee or not to pay the fee in full; the personal data of these users may be transmitted via the end of the use as well as the storage period referred to in paragraph 7, shall only be used, where this is necessary for the purposes of legal proceedings. The service provider shall delete the data immediately if the conditions set out in the first sentence are no longer available or if the data are no longer required for the purposes of the legal proceedings. The user concerned shall be informed as soon as this is possible without endangering the purpose pursued by the measure. Unofficial table of contents

Section 15a Information on incorrect data acquisition

If the service provider finds that the data stored in the service provider have been unlawfully transmitted or otherwise unlawfully brought to the knowledge of third parties, there is a risk of serious damage to the rights of the service provider. or protection-worthy interests of the user concerned, § 42a of the Federal Data Protection Act shall apply accordingly.

Section 5
Fines

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Section 16 Penal rules

(1) The person who intentionally conceals or conceals the sender or the commercial character of the message in breach of Section 6 (2) sentence 1. (2) acts contrary to the order of order, who intentionally or negligently
1.
Contrary to Article 5 (1), information is not available, is not available correctly or is not fully available,
2.
, contrary to § 13 (1) sentence 1 or 2, the user is not informed, not correct, not fully or not in good time,
3.
a requirement of section 13 (4), first sentence 1 to 4 or 5 or paragraph 7, first sentence 1, point 1 or point 2 (a), on the obligation to ensure that it is to be guaranteed;
4.
, contrary to § 14 (1) or § 15 (1) sentence 1 or paragraph 8, sentence 1 or 2, personal data is collected or used, or is not or is not deleted in time, or
5.
Contrary to § 15 para. 3 sentence 3, a usage profile with data on the bearer of the pseudonym is combined.
(3) The administrative offence can be punished with a fine of up to fifty thousand euros.