In July 2003, the Government adopted, at the Inter-Ministerial Committee for the Information Society, a series of measures to combat spam, the implementation of which was entrusted to the DDM. A contact group bringing together the main players in the Internet, both public and private, was set up. The work of this contact group has led to a concrete solution: a national platform for automatic spam reporting.
3.The legal framework: Germany’s "spam" legislation
Preliminary remarks: measuring spam
Several sources are used to account for the phenomenon of spam:
- victim impact statements;
- automatic filter readings from Internet service providers (in Germany Eco Verband plays a major role in spam);
- a spam box was set up by Eco Verband in 2001, the hotline launched in 1997 and aimed mainly at ISPs is no longer sufficient to handle all complaints.
Legal basis for combating spam:
- Definitions of spam:
There is currently no real definition of spam in Germany. But it can be deduced indirectly:
- case law (which defines what spam is not);
- the law on illicit competition;
- the work of Eco Verband, the association of internet service providers;
- the definition given by the European Commission.
- Law applicable to spam:
Specific laws on spam:
Two laws specifically regulate spam:
- The Unlawful Competition Act of 1909, amended several times until 8 July 2004 (Gesetz gegen dem unlauteren Wettbewerb, UWG Article 7) defines "unreasonable annoyance":any advertising transmitted by automatic calling system, by fax or by e-mail, without obtaining the recipient’s prior authorisation".
There are two exceptions:
- if there is already a customer relationship with the recipient;
- whether the recipient’s interest in receiving this information can be assumed.
The new version of the 2004 UWG incorporates the elements of German jurisprudence as well as those of the European Directive 2002/58/EC of 12 July 2002 on privacy and electronic communications. It therefore confirms the "opt-in" option, namely the principle of prior consent.
- The new Telecommunications Act of 22 June 2004 (or Telekommunikationsgesetz-TKG) transposes the European Directive of 12 July 2002 and in particular establishes the protection of the personal information of subscribers and users of telecommunications when collecting and using such data by providers of such telecommunications services.
Article 94 of that law provides that the consent of the user to the collection and use of his personal information may be declared by electronic means. However, it must have been given deliberately and clearly, it must have been registered and it must be possible for the subscriber to revoke it at any time.
Section 95 provides several exceptions to this requirement for prior consent:
- the service provider is authorised to collect and use basic information to the extent necessary to design, modify or terminate the subscriber contract;
- he may also use this information in the context of a contractual relationship with other service providers to the extent necessary for the performance of this contract.
Otherwise, the service provider shall be entitled to use the basic subscriber information for the purpose of customer orientation, or advertising for its own offers, only if such use is required for the contractual purposes and the subscriber has consented thereto.
Other applicable laws:
- Article 202a, 263, 303a and b of the German Criminal Code,
- Article 6 of the Law on the Information Society and Services,
- Article 28 of the Data Protection Act.
- Penalties for spammers
Judges sanction by awarding damages; the sums due in case of recurrence are often very large.
- Bi- or multilateral conventions/agreements concluded to combat "spam"
Germany has not yet concluded a convention or agreement on combating "spam".
- Other initiatives
The Eco Verband association launched a hotline dedicated to spam victims in 1997. To raise awareness among industry and the general public, the association organized the first German anti-spam congress on 21 June 2003 with the aim of publishing a report on possible defense measures.
A working group representing the major companies in the internet industry then began work in August 2003.
On 28 September 2004, the Eco association published a White Paper to help establish an information network (trusted network). This document essentially provides recommendations for access providers and provides for the development of a spammer whitelist.
Independent authority
Independent authority specialized in combating "spam"
No independent authority or public agency is specifically responsible for combating spam.
However, Article 115 of the 2004 Telecommunications Act provides for monitoring at company level by a Federal Data Protection Officer to ensure compliance with the provisions concerning the protection of personal data collected for the provision of telecommunications services. This representative may address his complaints to the Telecommunications and Postal Regulatory Authority. This authority has the power to impose sanctions against the company that does not comply with the law and may impose an administrative fine of up to 5,000 euros. If the undertaking still does not implement the measures issued by the Authority, the latter may prohibit it from providing telecommunications services.
Appeal
- Actions: class or individual
Legal actions have all been initiated by individual natural persons, but collective action is not excluded.
Private non-profit organisations authorised to act in defence of the interests of recipients of "spam"
Different organizations can sue spammers:
- the German Internet Economy Association (ECO);
- the Federation of German Consumer Associations (Vzbv);
- the Agency to combat unfair competition (Wettbewerbszentrale).
It seems possible for such organisations to join such a procedure or even to start it on behalf of a certain number of injured consumers.
- Competent judge
Conflicts of jurisdiction
Conflicts of jurisdiction are governed at Community level by the Brussels Regulation 1 of 22 December 2000.
These Rules apply in civil and commercial matters and whatever the nature of the court if the defendant is domiciled in a Member State of the Convention (Articles 1 and 2). If the defendant is not domiciled in the territory of a Contracting State, jurisdiction in each Contracting State shall be governed by the law of that State (Article 4).
Connecting criteria
Non-contractual material
> Extra-Community dispute (Zivilprozessordnung SPO)
The competent court is that of the place of damage: that of the place where the recipient received "spam".
> Community dispute
The applicant may choose to enter:
- the court of the defendant’s domicile, Article 2 of the Brussels I Regulation (RB1);
- the court of the place where the damage occurred: the place where the harmful message was loaded on the networks, that is to say the country in which a web page was loaded on a server, or the place where the message was sent;
- the court of the place where the damage is sustained, that is, the place where the message was received (5-3 RB1 and judgment CJEC 30/11/76).
Contractual matter
> Extra-Community dispute (Zivilprozessordnung SPO)
The competent court shall be the place where the defendant’s registered office is situated. If the dispute occurs between professionals, if they have provided for a jurisdiction clause, the designated court will have jurisdiction.
> Community dispute
Contract between professionals
The applicant may choose to enter:
- the court of the defendant’s domicile (Article 2 RB1);
- the court of a Member State where, under a contract for the provision of a service, the service has been or should have been performed (characteristic obligation of the contract) (Article 5-1b).
The court of the place where the obligation on which the application is based was or is to be enforced. (obligation in dispute) (Article 5-1a) if section 5-1b does not apply.
Conventional extensions of jurisdiction are allowed (Article 23 RB1).
Contract with a consumer (Art 16 RB1)
If the defendant is domiciled in a Member State and the professional pursues commercial or professional activities in the Member State in whose territory the consumer is domiciled.
If the applicant is a consumer, he may choose to enter:
- the court of the place of residence of the consumer;
- the court in the place where the professional is domiciled.
If the applicant is professional, they can enter:
- the court of the place where the consumer resides.
Criminal matters
(Strasprozessordnung StPO)
The competent court is the place where the spam is received.
- Governing law
Extra-contractual matter (Zivilprozessordnung SPO)
The applicable law is that of the place of damage: place where spam is received.
Contractual matter
> Proceedings outside the Community (Zivilprozessordnung SPO)
The applicable law is the place of the spammer’s registered office (the spammer is mostly a professional).
If the dispute occurs between professionals, if they have provided a choice clause of the applicable law, the designated law will be competent.
> Intra-Community litigation
- Primacy of the law designated by the parties to the contract (Art 3 Rome Convention 1980). - Failing this, the law of the country with which the contract is "most closely linked", that is "the law of the country in which the party who is to provide the characteristic service has its habitual residence at the time the contract is concluded". (Art 4 Rome Convention 1980)
Special features of contracts concluded with consumers (Article 5-1 Rome Convention 1980).
Precedence of the law designated by the parties to the contract unless the law designated results in depriving the consumer of the mandatory provisions of the law of the place of his habitual residence. Example: the main provisions of the consumer code.
Where a law is not designated, the applicable law shall be that of the consumer’s place of habitual residence in its entirety.
Criminal matters (Strasprozessordnung StPO)
The competent judge is that of the place where the spam is received.
Investigation
- Investigative means to identify and combat "spam" perpetrators
No investigative means have been defined to specifically identify and combat spammers.
However, under the new Telecommunications Act, the Regulatory Authority has powers to investigate and request information to ensure compliance with the law. These powers may therefore apply to spamming practices.