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reflected in basic social benefits.
22
Telecommunication services have become slightly less expensive,
decreasing by 2.7 percent,
23
and the costs for mobile internet usage and telephones have decreased
by 3.5 percent.
24
The telecommunications sector was privatized in the 1990s with the aim of fostering competition.
Over the past decade, market consolidation has led to a competitive environment dominated by
large companies both in fixed-line as well as mobile internet access; consequently, several smaller
ISPs have been forced out of business. The incumbent Deutsche Telekom's share of the broadband
market is 45 percent. Other relevant ISPs are 1&1-United Internet and Arcor-Vodafone (each with
12 percent of the market), O2-Telefónica (9 percent), and cable companies Unity Media (8
percent) and Kabel Deutschland (6 percent).
25
There are four general carriers for mobile internet access: T-Mobile, Vodafone, E-Plus, and O2-
Telefónica. In 2012, T-Mobile regained its market leadership from Vodafone, gaining a 32 percent
market share compared to Vodafone’s 30 percent. The smaller providers, E-Plus and O2-
Telefónica, have been steadily gaining market shares, with 21 percent and 17 percent of the
market, respectively.
26
The mobile market is seen as one of the most competitive in the EU,
27
though competition of mobile services in downstream markets is limited, since most German
mobile providers contractually prohibit services such as Voice over Internet Protocol (VoIP) or
even instant messaging.
28
The Body of European Regulators for Electronic Communications
(BEREC) is investigating this widespread practice of carriers across Europe and discussing possible
regulatory interventions.
29
Internet access, both broadband and mobile, is regulated by the Federal Network Agency for
Electricity, Gas, Telecommunications, Post, and Railway (Bundesnetzagentur or BNetzA) operating
under the supervision of the Federal Ministry of Economics and Technology. The president and
vice president of the agency are appointed for five-year terms by the German federal government,
22
Bundesgerichtshof [Federal Court of Justice], “Bundesgerichtshof erkennt Schadensersatz für den Ausfall eines
Internetanschlusses zu” [Court awards damages for internet failures], press release 14/13, January 24, 2013,
http://juris.bundesgerichtshof.de/cgi‐bin/rechtsprechung/document.py?Gericht=bgh&Art=pm&pm_nummer=0014/13. Hartz
IV standard rate is € 382, of which € 2.28 are for Internet access, Cf. Deutscher Bundestag [German Bundestag], Drucksache
17/3404, p. 60, http://dip21.bundestag.de/dip21/btd/17/034/1703404.pdf.
23
Statistisches Bundesamt, “Statistisches Jahrbuch. Deutschland und Internationales” [Statistical Yearbook], 2012, p. 402,
https://www.destatis.de/DE/Publikationen/StatistischesJahrbuch/StatistischesJahrbuch2012.pdf?__blob=publicationFile.
24
Bundesministerium für Wirtschaft und Technologie, 2012, p. 42.
25
Bundesnetzagentur, “Jahresbericht 2012” [Annual Report 2012], May 6, 2013, http://bit.ly/1eNOUXS. DSLWEB ; “Breitband
Report Deutschland Q3 2012” [Broadband Report Germany], http://bit.ly/TvtFOy.
26
Bundesnetzagentur [Federal Network Agency], “Teilnehmerentwicklung im Mobilfunk” [Development of Mobile
Subscriptions] , May 13, 2013, http://bit.ly/1h9FtPn; FAZ.net, “T‐Mobile ist wieder das beliebteste Handynetz” [T‐Mobile is
again the most popular mobile phone network], November 13, 2012, http://www.faz.net/‐gqi‐74br2.
27
European Commission, Digital Agenda for Europe – Scoreboard 2012, p.68. Cf. also the study by Haucaup et al. documenting
a fairly competitive market: Haucap/Heimeshoff/Stühmeier, 2010, “Wettbewerb im Deutschen Mobilfunkmarkt” [Competition
in the German mobile market], Ordnungspolitische Perspektiven Nr. 4.
28
Ekkehard Kern, “Die Tücken der Smartphone‐Verträge” [The pitfalls of smartphone contracts], welt.de, April 8, 2013,
http://www.welt.de/finanzen/verbraucher/article115087088/Die‐Tuecken‐der‐Smartphone‐Vertraege.html.
29
BEREC, “BEREC publishes net neutrality findings and new guidance for consultation”, Press release, May 29, 2012,
http://berec.europa.eu/eng/document_register/subject_matter/berec/press_releases/24‐berec‐publishes‐net‐neutrality‐
findings‐and‐new‐guidance‐for‐consultation. According to this study, at least 20 percent of mobile internet users in Europe
experience some form of restriction on their ability to access VoIP services.
306
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following recommendations from an advisory council consisting of 16 members from the German
Bundestag and 16 representatives from the Bundesrat. The German Monopolies Commission and
the European Commission (EC) have both criticized this highly political setting and the
concentration of important regulatory decisions in the presidential chamber of the Federal Network
Agency.
30
Similarly, the European Court of Justice (ECJ) and the EC noted that the regulation of
data protection and privacy by agencies under state supervision does not comply with the EU Data
Protection Directive 95/46/EC.
31
In addition to such institutional concerns, regulatory decisions by the BNetzA have been criticized
for providing a competitive advantage to Deutsche Telekom, the former state-owned monopoly.
32
The most recent examples are the agency’s decisions on April 10, 2013 to allow a slight increase in
the price that Telekom charges competitors for the “last mile”
33
and to support controversial
vectoring technology, which in turn manifests its dominant position regarding the last mile.
Vectoring can boost the bandwidth of DSL connections on existing copper lines but requires one
operator to manage the whole bundle, in effect limiting the unbundling of the local loop and thus
privileging, under specific circumstances, the market leader.
34
Blocking of websites or internet content rarely takes place in Germany.
35
In 2012-2013, there were
no publicly known incidents of censorship directly carried out by state actors. Since there is also no
significant filtering of text messages or e-mail communication, the overall scale and sophistication
of censorship has remained stable and on a non-significant level. YouTube, Facebook, Twitter and
international blog-hosting services are freely available.
30
Monopolkommission [Monopolies Commission], “Telekommunikation 2009: Klaren Wettbewerbskurs halten”
[Telecommunication 2009: stay on target in competition], Sondergutachten 56, 2009, p. 75,
http://www.monopolkommission.de/sg_56/s56_volltext.pdf; European Commission, “Progress Report on the Single European
Electronic Communications Market (15th Report)”, COM(2010) 253, p. 196,
http://ec.europa.eu/information_society/policy/ecomm/doc/implementation_enforcement/annualreports/15threport/15repo
rt_part1.pdf.
31
European Commission, “Data Protection: European Commission requests Germany to ensure independence of data
supervisory authority,” Press Release, Brussels, April 6, 2011,
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/407&format=HTML&aged=0&language=EN&guiLanguage=en.
32
European Commission, Progress Report, p. 196. Since the Federal Republic still exercises its rights as a shareholder of
Deutsche Telekom (circa 38 percent) through another public law entity, commentators see a potential conflict of interest;
Christian Schmidt, “Von der RegTP zur Bundesnetzagentur. Der organisationsrechtliche Rahmen der neuen
Regulierungsbehörde” [From RegTP to Federal Network Agency. The organizational framework of the new regulator], Die
Öffentliche Verwaltung 58 (24), 2005, p. 1028.
33
ZDNet, “Neuer Vorschlag der Bundesnetzagentur für TAL‐Entgelte erntet Kritik” [Network Agency’s Plans for Local Loop
Unbundling Charges is criticized strongly], March 28, 2013, http://www.zdnet.de/88149343/neuer‐vorschlag‐der‐
bundesnetzagentur‐fur‐tal‐entgelte‐erntet‐kritik/. An international tariff comparison in 2011 showed that the price level in
Germany is one of the highest in Europe: Bundesnetzagentur [Federal Network Agency], “International Tariff Comparison”,
2011, http://bit.ly/19a3uAJ.
34
Richard Sietmann, “Fiber to the Neverland. Die Telekom forciert VDSL‐Vectoring statt Glasfaser” [Fiber to the Neverland. DT
pushes VDSL‐Vectoring instead of Fibre]. c't 10/2013, April 29, 2013, pp. 18‐21, http://heise.de/‐1847272.
35
Due to substantial criticism by activists and NGOs that provoked an intense political debate, the 2010 law on blocking
websites containing child pornography, the Access Impediment law (Zugangserschwerungsgesetz), never came into effect and
was finally repealed by the German parliament in December 2011.
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Content blocking or filtering practices enforced by corporate actors have been discussed for some
time. The ongoing dispute between YouTube and GEMA (German Society for Musical
Performance and Mechanical Reproduction)
36
indicates that private entities substantially shape the
availability of online content: 61.5 percent of the most popular music videos on YouTube are
blocked in Germany.
37
Since 2009, YouTube has refused to pay for a license for copyright-
protected music videos disseminated on its platform, and instead shows an error message saying
that the video is not available in Germany because GEMA has not granted the publishing rights.
38
YouTube has also been legally required to remove protected content upon request under the
breach of duty of care.
39
GEMA holds a de facto monopoly because it exercises rights exclusively
and considers it a copyright violation when YouTube uses “the rights administered by GEMA
without paying any compensation to the copyright owners,”
40
and consequently sues Google for
damages.
41
Google has raised concerns about undesired harms for freedom of expression.
42
The
issue is most likely to continue in the courts as both parties filed appeals in May 2012.
43
In a few cases, private content regulation practices based on the enforcement of corporate terms of
service were the subject of controversial public discussions. For example, in March 2013 a German
radio host’s critical Facebook posts about the Catholic Church and the new pope’s attitude toward
same-sex marriage were deleted by Facebook without offering any reasons or the possibility to
restore the post.
44
The scale and scope of such practices remain non-transparent.
New evidence has confirmed that ISPs across Europe regularly use deep packet inspection (DPI) for
the purposes of traffic management, but also to throttle peer-to-peer traffic. Users are especially
affected by P2P-related restrictions in the mobile market.
45
In Germany, there is a clear lack of
36
Collecting societies are private organizations at the national level in Germany authorized by the Copyright Administration Act.
Although they act under the supervision of the German Patent and Trademark Office, they belong to the private sector. The
foundation requires an exemption from the antitrust laws by the Federal Cartel Office.
37
Compared to 0.9 per cent in the United States and ca. 1 per cent in Austria and Switzerland. Cf. sueddeutsche.de, “Diese
Kultur ist in Deutschland leider nicht verfügbar” [This culture is not available in Germany], January 28, 2013,
http://sz.de/1.1584813
38
GEMA demands 0.375 cents per retrieval.
39
LG Hamburg [Regional Court Hamburg], judgment of April 20, 2012, Az. 310 O 461/10, http://openjur.de/u/311130.html ; cf.
also EDRI, “YouTube loses a case in Germany to collective society Gema”, April 25, 2012,
http://www.edri.org/edrigram/number10.8/youtube‐gema‐case.
40
GEMA, “GEMA and YouTube”, accessed May 20, 2013, https://www.gema.de/en/press/popular‐
subjects/youtube/browse/4.html.
41
Süddeutsche.de, “Streit mit Youtube: Gema schaltet Schiedsstelle ein” [Dispute with Youtube: Gema calls in arbitration
body], January 10, 2013, http://sz.de/1.1570166.
42
In particular Google argues that because the GEMA doesn’t provide a list on the complete repertoire they licensed, most
music videos have been blocked in order to avoid financial risks. cf. http://www.djv‐bb.de/cms/nachrichten/2013‐02‐
16_GEMA_YouTube_Pressefreiheit.php
43
Süddeutsche.de, Gema legt Berufung gegen YouTube‐Urteil ein [Gema files an appeal against YouTube‐jugdement], May 22,
2012, http://sz.de/1.1362833
44
Tina Kulow, “Was ist mit dem Post von Domian passiert?” [What has happened with Domain’s post?], March 19, 2013,
https://www.facebook.com/notes/tina‐kulow/was‐ist‐mit‐dem‐post‐von‐domian‐passiert/625428644149658.
45
BEREC, “A view of traffic management and other practices resulting in restrictions to the open Internet in Europe. Findings
from BEREC’s and the European Commission’s joint investigation,” May 29, 2012, http://ec.europa.eu/digital‐
agenda/sites/digital‐agenda/files/Traffic%20Management%20Investigation%20BEREC_2.pdf.
308
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transparency regarding the scope of traffic management, particularly surrounding the use of DPI,
since ISPs are not required to provide the public with such information.
While there is no systematic blocking and filtering of content by the state, instances of the courts or
public authorities ordering the deletion of certain content have become common. In October 2012,
the U.S.-based company Twitter complied with a request to close the account of a neo-Nazi group
deemed illegal by German authorities.
46
Twitter did not delete the account but started to restrict
access to it for German users only.
47
This action was the first application of Twitter's new policy,
introduced in January 2012, to block content and accounts on a country-by-country basis in order
to balance free speech principles with its compliance of local laws. The specific decision did not
arouse much controversy in Germany, and has rather been regarded as a transparent way to
minimize censorship.
48
The autocomplete function of Google’s search engine has been repeatedly subject to scrutiny. In
September 2012, Germany’s former first lady sued Google for defamation over suggested words.
The lawsuit demanded that Google delete 85 suggested words, and furthermore, requested the
deletion of search results indexing articles that cover the issue. Google partly complied by deleting
eight of the 3,000 results from the index due to unlawful and false statements of fact.
49
Following a
considerable history of court rulings,
50
in May 2013 the Federal Court of Justice, in a different case,
ruled that Google could be held liable, at least under some circumstances, for the infringement of
personal rights through its autocomplete function.
51
There is no censorship prior to the publication of internet content. On the other hand, figures
released by ICT corporations concerning the amount of content removal requests received from
governments, public authorities, or copyright owners indicate that post-publication content
removal is used extensively. Microsoft has started to report the numbers of removal requests on a
country-by-country basis. Notably, none of those requests resulted in a disclosure of customer
content.
52
According to Google’s latest transparency report covering the period from July to
December 2012, the company received 231 requests from the German government and public
authorities.
53
Based on absolute numbers, Germany ranks third on a list of 65 countries that issued
requests for removal of content, following Brazil and the United States. To an unprecedented
46
The group ‘Besseres Hannover’ [Better Hanover] has been monitored by the German police for some time and finally banned
by the state’s interior ministry. Cf. Twitter Inc., “Transparency Report. Removal Requests July 1 – December 31, 2012”, 2013,
https://transparency.twitter.com/removal‐requests‐ttr2.
47
Twitter’s general counsel, Alex MacGillivray has announced the issue on Twitter: Alex MacGillivray, October 18, 2012,
https://twitter.com/amac/status/258745846584188928.
48
Twitter reported the case to chillingeffects.org and has made the request by German police authority publicly available:
Chilling Effects, “German Police ask Twitter to Close Account”, https://www.chillingeffects.org/notice.cgi?sID=625342.
49
Zeit Online, “Google löscht einige Bettina‐Wulff‐Einträge” [Google deletes several Bettina‐Wulff‐entries], November 11, 2012,
http://www.zeit.de/digital/datenschutz/2012‐11/google‐wulf‐loeschung.
50
OLG Köln [Higher Regional Court Cologne], judgment of May 10, 2012, Az. 15 U 199/11, http://openjur.de/u/462365.html.
51
BGH [Federal Supreme Court], judgment of May 14, 2013, Az. VI ZR 269/12; Jürgen Kuri/Martin Holland, “BGH zu
Autocomplete: Google muss in Suchvorschläge eingreifen” [BGH on autocomplete], May 14, 2013 http://heise.de/‐1862062.
52
Microsoft, “2012 Law Enforcement Requests Report”, http://www.microsoft.com/about/corporatecitizenship/en‐
us/reporting/transparency/.
53
Google complied fully or partially with 77 percent of these requests. Google, “Google Transparency Report. Germany. July to
December 2012,” 2013, http://www.google.com/transparencyreport/removals/government/DE/?p=2012‐12.
309
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degree, requests were mandated by court orders (192 requests), most commonly for defamation
reasons. The total number of items requested to be removed was 1,105. The most requested items
to be removed were for defamation, adult content, and hate speech matters. German youth
protection authorities have continuously requested the removal of content deemed to violate
German youth protection legislation, especially videos on YouTube.
54
The protection of minors constitutes an important legal framework for the regulation of online
content.
55
Youth protection on the internet is principally addressed by states through the Interstate
Treaty on the Protection of Human Dignity and the Protection of Minors in Broadcasting (JMStV),
which bans content similar to that outlawed by the criminal code, such as the glorification of
violence and sedition.
56
A controversial provision of the JMStV reflecting the regulation of
broadcasting media mandates that adult-only content on the internet, including adult pornography,
must be made available in a way that verifies the age of the user.
57
Compliance with the interstate
agreement is supervised by the Commission for Youth Protection Relating to Media (KJM) and
supported by a joint body, jugendschutz.net, which operates a hotline for complaints. Notably, the
JMStV enables the blocking of content if other actions against offenders fail and if such blocking is
expected to be effective. Offending websites hosted outside of Germany are put on blacklists that
are made available for privately developed filtering software. Members of the self-regulatory body,
Voluntary Self-control for Multimedia Service Providers (FSM), are committed to removing
blacklisted websites from their search results. In February 2013, the Federal Minister of Family
Affairs, Senior Citizens, Women and Youth, in cooperation with internet industry partners and
jugendschutz.net, introduced a proxy server meant to ensure safer internet use for children.
58
The
software is offered at no charge for individual download and is available for mobile devices as well
as computers. Presently, two filtering software solutions for youth protection are officially
approved by the KJM.
59
The liability of platform operators for illegal content is regulated by the telemedia act. The law
distinguishes between full liability for owned content and limited “Breach of Duty of Care”
(Stoererhaftung) of access providers and host providers for third party content.
60
Although access and
host providers
61
are not generally responsible for the content they transmit or temporarily auto
store, there is a certain tension between the underlying principles of liability privilege and that of
54
According to the German Report for the first and second half of 2012 (cf. Fn. 51) youth protection authorities requested a
total of 451 videos to be removed from YouTube.
55
The legal framework regulating media protection of minors in particular consists of the Law for the protection of children and
youth (“Jugendschutzgesetz”, JuSchG) of the federal government and the Interstate Treaty on the Protection of Minors in the
Media (short “Jugendmedienschutzstaatsvertrag”, JMStV).
56
Cf. the respective §§ 130, 131 StGB [Crimical Code]. English translation: http://www.gesetze‐im‐
internet.de/englisch_stgb/englisch_stgb.html.
57
Cf. the respective § 5, Abs. 3 JMStV.
58
KinderServer homepage, accessed August 19, 2013, http://www.kinderserver‐info.de/
59
Monika Ermert/Andreas Wilkens, “Neuer Anlauf für den Jugendmedienschutzstaatsvertrag” [New attempt to reform the
Interstate Treaty on the Protection of Minors in the Media], February 22, 2013, http://heise.de/‐1809147.
60
In particular: Part 3, §§ 7‐10 TMG: liability for own content (§ 7, Abs. 1 TMG); limited liability for access providers (§§ 8, 9
TMG) and host providers (§ 10 TMG).
61
The BGH in particular has developed the principles of limited liability of host providers: BGH [Federal Court of Justice],
judgment of October 25, 2011, Az. VI ZR 93/10.
310
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secondary liability.
62
Principally, ISPs are not required to proactively control or review the
information of third parties on their servers; they become legally responsible as soon as they gain
knowledge of violations or violate reasonable audit requirements.
63
In 2012, court rulings limited the liability privilege of ISPs by further specifying requirements,
responsibilities, and obligations. Notably, these have commonly occurred in relation to copyright
enforcement online. In this respect, additional blocking and filter obligations of host providers have
been put in more concrete terms by the Federal Court of Justice (Bundesgerichtshof, BGH) in the
“Alone in the Dark” case.
64
In the specific instance, the game publisher Atari sued the file hosting
service Rapidshare for copyright violations concerning the video game “Alone in the Dark.”
Although the judges did not hold Rapidshare liable for a direct infringement, they saw a violation of
the service’s monitoring obligation under the breach of duty of care. Once the file hosting service
was notified of one infringing copy, the court said, it should have proactively controlled its service
for other copies of the same material.
65
Hosting services are now supposed to implement
technically and economically reasonable mechanisms in order to prevent any further violations of
the respective copyright.
In addition to the mere deletion of relevant data, the court also deemed manual post-filtering by
words and the control of external link collections technically reasonable. Depending on the current
technical standard, automated control mechanisms can also be considered.
66
Furthermore, ISPs are
obliged to disclose customer information for prosecutions of copyright infringement, even though
the person may not have infringed copyrights for commercial purposes.
67
A special requirement to
review the content on any violations of rights was also ruled in a case where a blogger integrated a
YouTube video onto his website.
68
Whereas linking to other websites is regarded as unproblematic,
embedding content, primarily videos from other sources, could cause liability risks for the
provider.
69
An important exception to the liability privilege concerns wireless networks.
70
Because of a highly
disputable ruling against the existing liability privilege by the Federal High Court in 2010,
62
Liability privilege means that information intermediaries on the internet such as ISPs are not responsible for the content their
customers transmit. Secondary or indirect liability applies when intermediaries contribute to or facilitate wrongdoings of their
customers.
63
BGH [Federal Court of Justice], judgment of March 27, 2012, Az. VI ZR 144/11, http://openjur.de/u/405723.html.
64
BGH [Federal Court of Justice], judgment of July 12, 2012, Az. I ZR 18/11, http://openjur.de/u/555292.html.
65
Timothy B. Lee: Top German court says RapidShare must monitor link sites for piracy, July 16, 2012,
http://arstechnica.com/tech‐policy/2012/07/top‐german‐court‐says‐rapidshare‐must‐monitor‐link‐sites‐for‐piracy/.
66
Thomas Stadler, “BGH: Rapidshare muss Wortfilter einsetzen und externe Linksammlungen überprüfen” [Federal Court of
Justice: Rapidshare is required to deploy filters by words and to screen external link collections], February 2, 2013,
http://www.internet‐law.de/2013/02/bgh‐rapidshare‐muss‐wortfilter‐einsetzen‐und‐externe‐linksammlungen‐
uberprufen.html.
67
Bundesgerichtshof [Federal Court of Justice], judgement of April 19, 2012, Az. I ZB 80/11, http://openjur.de/u/438903.html.
68
LG Hamburg [Regional Court Hamburg], judgement of May 18, 2012, Az. 324 O 596/11, http://openjur.de/u/404386.html.
69
Leonhard Dobusch, “Risikofaktor Einbettung: YouTube, Twitter und das Urheberrecht” [Risk factor embedding: YouTube,
Twitter and copyright legislation], January 23, 2013, http://netzpolitik.org/2013/risikofaktor‐einbettung‐youtube‐twitter‐und‐
das‐urheberrecht/.
70
In 2010, the German Federal High Court sentenced the private owner of a wireless router on the grounds that his or her open
network allowed illegal activities. cf. Christopher Burgess, “Three Good Reasons to Lock Down Your Wireless Network,” The
311
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legislative initiatives from states and political parties now seek to modify the secondary liability of
local Wi-Fi operators.
71
Content hosts have also been pursued for further investigations for opinions expressed by third
parties on their platforms, as single cases indicate. In these cases, authorities have required platform
owners to provide the real names of users who were prosecuted for defamation reasons. They even
went so far as to search the editorial office of a newspaper, which was later ruled as being
unlawful,
72
and to order a coercive detention for an online editor because he refused to provide the
user’s name.
73
In the latter case, the editor invoked his right to refuse testimony and has appealed
to the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG).
The principle of proportionality has constitutional status in Germany to which public authorities
must comply. All means taken by the state against its citizens must remain proportional to the ends
pursued. The interplay between the Ministry of Justice, the national data protection officer, the
association of internet service providers (Eco), and the internet community effectively hold the
bodies involved accountable.
Court proceedings are generally public. While a comprehensive list of all content blocking or
deletion orders is not available, the media generally covers such measures. One important
exception in reporting concerns the indexes of internet services of the KJM and the Federal Review
Board for Media Harmful to Young People (BpJM), which are kept secret.
74
There is no systematic self-censorship in the German press; however, certain incidents signal that
press companies are becoming more risk-averse when making decisions on the content they intend
to publish through private app stores.
75
Furthermore, there are more or less unspoken rules
reflected in the publishing principles of the German press.
76
The penalty code and the JMStV
prohibit content in a well-defined manner (such as child pornography, racial hatred, and the
Huffington Post (blog), June 8, 2010, http://www.huffingtonpost.com/christopher‐burgess/three‐good‐reasons‐to‐
loc_b_599945.html.
71
Cf. Resolution of Bundesrat of October 12, 2012, TOP 12,
71
http://www.bundesrat.de/cln_236/nn_6898/DE/parlamentsmaterial/to‐plenum/901‐sitzung/to‐node.html?__nnn=true) and
the debate in the German Bundestag, “Plenarprotokoll 17/201. Stenografischer Bericht. 201. Sitzung Berlin”, [Minutes of the
pleneray meeting] October 25, 2012, http://dip21.bundestag.de/dip21/btp/17/17201.pdf.
72
beck‐aktuell, “LG Augsburg: Durchsuchung einer Redaktion rechtswidrig” [Regional Court Augsburg: Permission to search the
editorial office illegal], May 20, 2013, http://beck‐aktuell.beck.de/news/lg‐augsburg‐durchsuchung‐einer‐redaktion‐
rechtswidrig.
73
Deutsche Wirtschafts Nachrichten, “Drohung mit Beugehaft wirkt: Online‐Portal gibt Nutzer‐Daten preis" [Threat of coercive
detention works: online portal discloses user data], May 6, 2013, http://deutsche‐wirtschafts‐
nachrichten.de/2013/05/06/drohung‐mit‐beugehaft‐wirkt‐online‐portal‐gibt‐nutzer‐daten‐preis/.
74
The so called parts C and D of the index are not public. BpJM, „Liste der Bundesprüfstelle“ [Index of the Federal Review Board
for Media Harmful to Young People],
http://www.bundespruefstelle.de/bpjm/Jugendmedienschutz/Indizierungsverfahren/verfahrensarten,did=32964.html; See also
for in overview in English http://www.bundespruefstelle.de/bpjm/information‐in‐english.html.
75
In order to avoid later complaints a news magazine was prompted to change the issue cover in the way it deemed to be in
line with Apple’s terms concerning nudity ; Cf. heise.de, “E‐Kiosk‐Betreiber Zinio verlangt Zensur auf Android‐ und iOS‐Geräten”
[E‐kiosk operator Zinio demands censorship on Android and iOS‐devices], May 6, 2012, http://www.heise.de/mobil/meldung/E‐
Kiosk‐Betreiber‐Zinio‐verlangt‐Zensur‐auf‐Android‐und‐iOS‐Geraeten‐1568938.html
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Presserat [Press Council], “Pressekodex” [press code], version dated March 13, 2013, http://www.presserat.info/inhalt/der‐
pressekodex/pressekodex.html.
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glorification of violence). The JMStV also regulates adult content that is potentially harmful to
minors, stipulating that content inappropriate for certain age groups must be regulated to prevent
access by children or young persons.
While the degree to which political actors can successfully pressure online news outlets to exclude
certain information from their reporting is still insignificant, there have at least been attempts to
delete critical information on the internet. The German Bundestag asked a blog to delete an expert
report on corruption among parliamentarians because of an alleged copyright infringement. The
platform owner refused to do so without further consequences.
77
Additionally, the Federal Ministry
of Defense has taken legal steps against a newspaper,
78
demanding that it delete a set of leaked
mission reports covering Afghanistan operations of the federal armed forces (Bundeswehr), based on
alleged copyright infringement.
79
With the latest amendment of the telecommunications act (Telekommunikationsgesetz, TKG) enacted
in May 2012, the principle of net neutrality has been legally codified (§ 41a TKG), but is still not
entirely safeguarded.
80
The law authorizes the government to define basic requirements for non-
discriminatory data transfer and content access, but it does not require the government to take any
further action. The German Federal Network Agency (Bundesnetzagentur, BNetzA) principally
supports net neutrality, but instead of safeguarding it legally, the national regulator favors new
business models based on price discrimination and differentiated classes of service as long as ISPs
are transparent about their policies and give customers a choice.
81
The lack of concrete action on
the part of the German government has also encountered criticism, especially when two of the
market-leading telecommunications companies, Vodafone and Deutsche Telekom, announced new
terms for customer contracts. Telekom, for example, announced that it would place limits on
customers’ high-speed data transfer per month, but that its own services, such as television and
movie-streaming services, would not count toward customers’ data transfer limits.
82
Treating in-
house services differently in particular has raised concerns in terms of competition and consumer
protection by governmental representatives who also declared that these practices should be
scrutinized more closely.
83
77
Markus Beckedahl, “Der Deutsche Bundestag fordert uns auf, das bisher geheim gehaltene Gutachten zur
Abgeordnetenkorruption zu depublizieren” [The German Bundestag calls on us to take down a yet secret report on MPs
corruption], October 17, 2012, https://netzpolitik.org/2012/der‐deutsche‐bundestag‐fordert‐uns‐auf‐das‐bisher‐geheim‐
gehaltene‐gutachten‐zur‐abgeordnetenkorruption‐zu‐depublizieren/
78
David Schraven, “Verteidigungsministerium geht juristisch gegen die WAZ vor” [Ministry of Defense taking legal steps against
the WAZ], DerWesten Rechercheblog, April 8, 2013, http://www.derwesten‐recherche.org/2013/04/verteidigungsministerium‐
geht‐juristisch‐gegen‐waz‐vor/.
79
David Schraven/WAZ, Die Afghanistan Papiere [The Afghanistan wires], accessed April 10, 2013,
http://afghanistan.derwesten‐recherche.org/.
80
In particular: § 41a TKG, http://dejure.org/gesetze/TKG/41a.html. The clause simply authorizes the government to define
basic requirements for non‐discriminatory data transfer and content access, and leaves it to the Bundesnetzagentur to
determine minimum quality of service standards ‐‐ a path the regulator is not likely to go.
81
Cf. minutes of the Expert Meeting on net neutrality of the Parliamentary Inquiry Commission, October 8, 2010,
http://bit.ly/1dOvaQI.
82
Rolf Wenkel, “Telekom's planned data limit meets with protest,” Deutsche Welle, April 25, 2013,
http://www.dw.de/telekoms‐planned‐data‐limit‐meets‐with‐protest/a‐16773016.
83
Annett Meiritz/Severin Weiland, “Flat‐Rate Fiasco: Telekom Plan to Limit DSL Worries Berlin”,
http://www.spiegel.de/international/business/government‐wary‐of‐telekom‐limits‐on‐flat‐rate‐dsl‐access‐a‐896435.html.
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Germany is home to a vibrant internet community and blogosphere. Local and international media
outlets and news sources are generally accessible and represent a diverse range of opinions.
84
Policies affecting internet regulation, data protection, or surveillance enjoy increasing public
attention and media coverage. Internet-related topics are growing increasingly popular, also due to
increased attention among political institutions. All political parties now have internet experts.
Whereas in early 2012 the German Pirate Party could continue its remarkable success in state
elections,
85
their popularity has recently been decreasing.
86
After three years of work, the multi-
stakeholder Commission of Inquiry (Enquete-Kommission) on Internet and Digital Society
87
released its final report in April 2013.
88
Among other things, the commission calls for the
establishment of a permanent internet commissioner at the federal level.
89
In 2012, an example of the growing discursive power of the internet community revolved around a
discussion which started on Twitter. Under the hashtag #aufschrei (“outcry”), people started to
tweet about everyday sexism against women. The discussion soon left the Twitter-sphere and
became a nation-wide societal debate.
90
Additionally, activists are waging online campaigns in the
fight for net neutrality
91
against the telecoms Vodafone
92
and Deutsche Telekom, and have already
been partly successful.
93
At the same time, multiple laws that restrict internet freedom, such as
some of the amendments to the telecommunication act, were passed despite strong criticisms by a
broad coalition of societal actors.
Germany is considered to be one of the most privacy-conscious countries; however, the 2012
amendments to the telecommunication act included a provision which allows more public agencies
access to user data, and lowers the threshold for this access from investigations into serious crimes
to misdemeanors and administrative offences, raising concerns about the trajectory for privacy
protections in the country.
84
Bundesinnenministerium [Federal Ministry of the Interior], “Die nationalen Minderheiten in Deutschland” [National
minorities in Germany], January 30, 2013, http://bit.ly/13cNnE7.
85
Voter turnout of the Pirate Party in Berlin: 8.9 percent, Saarland: 7.4 percent, Schleswig‐Holstein: 8.2 percent, Nordrhein‐
Westfalen: 7.8 percent
86
Daniel Leisegang, “Piraten auf Schlingerkurs” [Pirates are on slalom course], Blätter 11/2012, p. 11‐14,
http://www.blaetter.de/archiv/jahrgaenge/2012/november/piraten‐auf‐schlingerkurs.
87
Cf. the website of the Enquete‐Kommission [Parliamentary Inquiry Commission]:
http://www.bundestag.de/internetenquete/.
88
Final report of the Parliamentary Inquiry Commission “Internet und digitale Gesellschaft” [The Internet and digital society]:
Deutscher Bundestag, Drucksache17/ 12550, April 5, 2013, http://dipbt.bundestag.de/dip21/btd/17/125/1712550.pdf.
89
Der Spiegel, “Net Politics: Report Calls for German Internet Commissioner”, April 19, 2013,
http://ml.spiegel.de/article.do?id=895412.
90
Silke Wünsch, “Anti‐sexism Twitter campaign gains momentum”, January 26, 2013, http://dw.de/p/17S9K .
91
Cf. campaign website: http://echtesnetz.de/.
92
Cf. campaign website: http://halbesnetz.de/.
93
The Federation of German Consumer Organizations (vzbv), a non‐governmental organization for consumer protection,
admonished both companies for disseminating misleading information in their terms and inadmissible contracts. Cf.
http://www.vzbv.de/10432.htm ; http://bit.ly/16LO8Xh
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