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Converging Communications, Diverging Regulators? - Germany's Constitutional Duplication in Internet Governance
Christian Koenig
The Internet 1 is turning into the main carrier of new services in the sectors of telecommunications and electronic media. Yet these new services run the danger of suffering the inefficiencies and frictions of the German legal system, due to the vertical federal division of the power to legislate and administrate. On one side, there is the central government - the Bund - and on the other side, the sixteen regional governments - the lander. Both claim responsibility for establishing a legal framework for the Internet. The Bund considers Internet regulation to consist mainly of commerce and telecommunications, for which the Bund holds the power to legislate 2 . The lander regard the Internet largely as a new means of broadcasting for which they hold the power to legislate 3 . Therefore, Germany now has two parallel sets of rules governing services offered over the Internet 4 . The following example based on TV-shopping programs shall explain the dilemma:
Simultaneously with the usual TV-shopping programs, the viewer could be offered further information via the Internet by use of a set top box like WebTV on the TV-screen. Using so called push-technology 5 orintercast technology, data about the latest promotional campaigns could be transferred directly to the consumer's hard drive. The homepage of the TV-shopping channel could be linked with a call centre from which the viewer could ask for a phone call clicking an icon - and this phone call could be run over the Internet 6 to save money. Having been called back by the call centre, the viewer could order the products advertised after having received personal advice.
Commercially speaking, all this is a single service. Yet in the German administrative system it is split up between the responsilibities of multiple regulatory authorities. This is due to the fact that in order to classify the service legally, the service as a whole is not regulated holistically, but each component is considered separately. This is a nuisance as such, but it is even more problematic with the powers to legislate and supervise being divided between the Bund (federal government) and the Länder(states).
First of all, the TV programme could be considered as broadcasting or as a so called "media service" (Mediendienst) 7 - depending on the content's capacity to influence public opinion. Broadcasting is be covered by the states' treaty on broadcasting Rundfunkstaatsvertrag, a media service by the more liberal rules of the states' treaty covering media services Mediendienststaatsvertrag 8 , both in the power of the states. Broadcasting is supervised by each state's public bodies for media supervision Landesmedienanstalten, the media services supervised by the state data protection ombudsman (Landesdatenschutzbeauftragten) and the states' combined ombudsman for the protection of minors in media services (gemeinsamer Beauftragter der Länder für Jugendschutz in Mediendiensten).
Furthermore, the possibility for on-line consumers to order interactively - an act of individual communication - represents a Teledienst (tele-service) 9 . Tele-service rules are laid down in the federal government statutes governing services of information and communications Informations- und Kommunikationsdienste Gesetz 10 and more precisely the statute governing tele-services (Teledienstegesetz, Art. 1 of the IuKDG).
Thus the federal official in charge of data protection and the federal office for the protection of minors are in charge of tele-services. It is still unclear whether services using push technology are covered by the state rules for Mediendienste or federal statutes covering Teledienste.
Finally, a phone call is a service of telecommunications, thus the federal regulatory authority for telecommunications Regulierungsbehörde is responsible for applying the federal statutes governing telecommunications Telekommunikationsgesetz.
Obviously, the German rules are cluttered with various regulating authorities and therefore stand little chance of attracting investors in the international contest between regulatory regimes. The state and federal legislators appear to have ignored the most ubiquitous feature of the Internet, that new media markets can almost uniquely be supplied from any geographic location.
In all probability, the legislators felt bound by precedent, in the federal constraints of the German constitution for legislation and executive. Examining the largely similar statutes of the federal government and states, it becomes obvious that the insistence on two separate regulatory regimes is less a matter of differing policies concerning the new services. It is more one of the political will to make use of the powers to legislate as laid down by the constitution. Neither states nor federal government dared the more holistic venture of changing the constitution, to create joint competence and a joint regulatory regime between federal and state government.
For the politically more independent minded spectator, however, it appears to be necessary to adjust the legal framework of the new services to the process of increasing technological integration and convergence of the services and networks of communication. It is precisely in order to address the latter, that the European Commission published its Green Paper in December 1997 11 . In this publication, the Commission showed that it will accept differing national regulatory concepts in the short term. This encourages a contest between diverging regulatory models, a contest which should be taken seriously by the German legislators. Any regulatory option proposed by Germany, which is flawed by a federal division of powers to legislate new services, cannot convince internationally. The German constitution should be amended. A unified legal framework for the communications services should be created. This uniform legal framework should in the long run overcome the separation between telecommunications and broadcasting 12 , taking into account the increasing use of TV-cables and electric cables to phone or to access the Internet 13 .
This amendment of the constitution would constitute a quantum leap for German politics as well as for German law. So far, there is no possibility for a real joint competence for Bund and lander in the constitution. Apart from Art. 91 a, b GG of the constitution - allowing for extensive co-operation in certain subject matters which are in the power of the lander - the constitution has kept the powers of the Bund and the lander strictly separate. And traditionally, the Bund and the lander have been quite happy to insist on their respective powers to legislate focussing more on the limits of the counterpart's jurisdiction and less on the subject matter involved. Here, a new spirit of co-operation is demanded abolishing old-fashioned thinking and embracing the consequences of the new technology for German law. The so-called "guarantee of eternity" ("Ewigkeitsgarantie") laid down in Art. 79 Abs. 3 GG would not run counter to said constitutional change. Especially the principle of preserving the character of the states as proper legal entities ("Bundesstaatprinzip") as part of the "guarantee of eternity" will not be injured by the amendment. Using the words of the German Constitutional Court, the change would constitute merely "a modification of general constitutional principles within the system" ("systemimmanente Modifikation von allgemeinen Verfassungsprinzipien") which is in keeping with the constitution following the Court's general rulings on Art. 79 III GG. 14
After the constitution has been amended, a new joint federal-state institution could be created as regulatory authority for all communications services. This institution would act on behalf of the states through decentralised offices. Obviously, a modus administrandi would have to be found leaving the states a politically acceptable independence in administration. After all, the states would integrate their competence to legislate and supervise in the realm of broadcasting, in the new joint federal-state framework - even though solely in the area of the new services of communications . Details would remain to be worked out in negotiations in between the federal and state governments. The foremost duty of this authority would be the supervision in legal matters. It would have to ensure consistent interpretation of the regulatory interpretation of the new communications law, to be created by joint federal-state treaties for both the entire country and the entirety of services offered. According to the subject matter, decisions in the mixed body of federal and state government should be taken by a jointly appointed independent council of experts. These experts should not be representatives taking orders from the public bodies which appointed them. They should be independent, thus removing the regulation of the converging communication services from the reach of vested political interests in media and commercial policy.
Finally, as a sign of new service mentality - new at least for German public administration - a contact point in the form of a "Mr. Internet" should be created informing investors on behalf of the regulatory authority on all legal matters involved (protection of minors, data protection, licenses for telecommunication etc.) In creating a holistic "one-stop shop" for enterprises, Germany's position in the contest for investment in the sectors of telecommunications and media would be decisively improved.
Endnotes
| Note 1: | For the history of the internet cf.: Mayer, Humboldt Forum Recht Back. |
| Note 2: | For the side of the bund cf.: Bullinger/Mestmäcker, Multimediadienste, Gutachten 1996 Back. |
| Note 3: | For the lander cf. e.g.: Gersdorf, Vortrag 1996 Back. |
| Note 4: | For further details on the legislative framework, cf. Braun/Schaal, Federalism, the Nation State and the Global Network: The Case of German Communications Policy Back. |
| Note 5: | For news used by Pointcast Back. |
| Note 6: | Cf. e.g.: Netspeak Back. |
| Note 7: | Mediendienste are defined in § 2 Mediendienstestaatsvertrag as "services of information and communication in text, sound or picture adressing the public and being distributed without a conductor or using a conductor" - the antiquated sound of the terminology stems from its roots in the landers' older treaty covering broadcasting. Back. |
| Note 8: | The Mediendienstestaatsvertrag entered into force on August 1, 1997. Back. |
| Note 9: | Teledienste are defined in § 2 Teledienstegesetz as "all electronic services of information and communication for the individual use of data as signs, pictures or sounds being transmitted using telecommunication" - the definition is generally regarded to overlap with that of a Mediendienst. Back. |
| Note 10: | The Informations - und Kommunikations Gesetz containing the Teledienste-Gesetz entered into force on July 22, 1997. It is frequently stated that the IuKDG has a de-regulatory effect. It is hard to agree with this statement considering the subject matter had not been regulated at all previously. Back. |
| Note 11: | European Commission, Green paper on the convergence of the telecommunications, media and information technology sectors, and the implications for regulation (COM(97)623) Back. |
| Note 12: | The same demand is made by UK's OFTEL Back. |
| Note 13: | Even high speed Internet access via electric cables is possible Back. |
| Note 14: | cf. e.g. BVerfGE 30, 1, 29 Back. |