International Journal of Communications Law and Policy

Workshop "Internet Telephony" at Marburg (Germany), June 5 to 6, 1998

 

Internet-Telephony between TKG, IuKDG and the states treaty covering media services
by Robin Helmke, Björn Müller & Andreas Neumann

 

By the introduction of the Internet telephony a new service has been established that is not only characterised by the classical attributes of Internet services, but also by those of ordinary telephony. That is why it is necessary to evaluate Internet telephony regarding the German multimedia law.

Telephone services in Germany used to be regulated by the FAG (Law concerning telecommunications devices, " Gesetz über Fernmeldeanlagen ") and are now regulated by the TKG (The "Telecommunications Act ", BGBl. I S. 1120, dating from July 1996.). Telecommunications is the central term of the TKG. It is defined in § 3 No. 16 TKG as "the technical process of sending, transmitting and receiving any kind of message in the form of signs, voice, images or sounds by means of telecommunications systems". Internet telephony is covered by this definition. It may appear doubtful whether the transmitted data can be regarded as language, but nevertheless these data are signs regulated by the TKG (Felixberger, Stefan, Staatliche Überwachung der Telekommunikation, in: CR 1998, 143 (144).). Finally, not only the systems used for sending and receiving, but also the routers realizing the transport of the IP pakets, are telecommunications systems within the meaning of § 3 No. 17 TKG (Mecklenburg, Wilhelm, Internetfreiheit, in: ZUM 1997, 525 (526).). If someone is running computer systems which are at least partially used for Internet telephony purposes, the offer of this service is a telecommunications service within the meaning of § 3 No. 18 TKG, which also is offered to the public as stated in § 3 No. 19 TKG. Even if the service is offered without the intention to realize profits it is qualified as commercial provision of telecommunications services according to § 3 No. 5 TKG - as long as it is done on a sustained basis.

Since last year's summer there are two new acts, which were intended to handle problems arising because of the fast technological development of new services of information and communication.

For the states treaty covering media services (The " Staatsvertrag über Mediendienste ", entered into force on August 1, 1997.) the crucial point is the question if the service is offered to the public. This is the case if the service itself, the possibility of getting in touch with its content, is offered to the public (Kröger, Detlef / Moos, Flemming, Mediendienst oder Teledienst?, in: AfP 1997, 675 (679).). Yet Internet telephony as a service of communication addresses only the people involved in the conversation and not third parties of any kind. Therefore, it is not a media service.

The TDG (The " Act on the Utilization of Teleservices ", shortly Teleservices Act, as article 1 of the "Federal Act Establishing the General Conditions for Information and Communication Services" (IuKDG) of July 22, 1997, BGBl. I S. 1870, entered into force on August 1, 1997.) on the contrary regulates services which are - just like Internet telephony - designed for individual use and which are based on transmission by means of telecommunication. Consequently, Internet telephony complies with the general definition of a teleservice given in § 2 (1) TDG. Furthermore, Internet telephony can be subsumed under the definition of the first example, which can be found in § 2 (2) TDG. Although No. 2 seems to fit as well, the given practical examples and the history of this subsection make clear that it is limited to equivalents of offers and advertisements (Engel-Flechsig, Stefan, Das Informations- und Kommunikationsdienstegesetz des Bundes und der Mediendienstestaatsvertrag der Bundesländer, in: ZUM 1997, 231 (235).). Therefore, Internet telephony doesn't comply with this second example. The same applies to number 3 because of two reasons. First, § 2 (2) No. 3 TDG was of no real importance during the process of legislation (In the official reasons, the rather unimportant "navigation tools" are stated as examples.). And second, the important group of access providers is already regulated by the TDG in § 3 No. 1 TDG. So there is no need to consider all services merely enabling access to the Internet on a technical basis, like Internet telephony does, as services of the example of § 2 (2) No. 3 TDG. On the contrary, § 2 (2) No. 3 TDG is restricted to services providing access in a nontechnical way (Mayer, Patrick, Re: Internet-Dienste, contribution of April 11, 1998, in the mailing list "Juristische Fragen zu elektronischen Kommunikationsdiensten"; Neumann, Andreas, Re: Internet-Dienste, contribution of April 11, 1998, in the mailing list "Juristische Fragen zu elektronischen Kommunikationsdiensten".). Nevertheless Internet telephony is a teleservice because it complies with the characteristics of the first example of § 2 (2) TDG as well as with the general attributes of § 2 (1) TDG.

As mentioned above, the differentiation of the TKG and the TDG is covered by § 2 (4) No. 1 TDG. The construction of the paragraph shows that teleservices are usually combined with telecommunications. Therefore, the differentiation between TKG and TDG has to be done functionally. As far as telecommunication is concerned, the service is regulated by the TKG. Otherwise it is ruled by the TDG. Because of the digitalization and caching of voice-data in computer-devices being regularly out of control of the user, and the transport of data over the internet, the user of Internet telephony applications is confronted with new and higher risks that can be countered by the TDG and the Teleservice Data Protection Act (TDDSG, is article 2 of the IuKDG.). Therefore it seems to be inappropriate to diverge from § 2 (4) TDG and to classify Internet telephony merely as a result of the convergence of telephone services with the Internet leading to exclusive applicability of the TKG on Internet telephony. The convergence of the services makes it even more important to emphasize technical aspects of the services. This is only possible using a functional differentiation.

A functional differentiation of TDG and TKG can be done by the ISO/OSI reference model (Open Systems Interconnection - Basic Reference Model ISO/IEC 7498-1:1994; detailed introduction to the ISO/OSI-model by Payer and Neumann/Dridi). Technically speaking, the application "Internet telephony" is a service based on the TCP or UDP protocol stack.

The layers of the ISO/OSI model are divided into network orientation and application orientation (Neumann/Dridi, foil 1-6.). This is comparable to the distinguishing of § 2 (4) No. 1 TDG in content and telecommunication characteristics of a service. The layers 1-3 of the OSI model can be characterized as telecommunication and assigned to the TKG, whereas the layers 6-7 comprise content and therefore can be assigned to the TDG. Also the 5th layer, serving to configure and structure the data-stream and therefore necessary before the actual communication, is assigned to the TDG.

On the contrary, the 4th layer segments, enumerates and transmits and respectively receives the data by UDP or TCP and therefore corresponds to the definitions of telecommunication in § 3 No. 16 TKG. A differentiation according to § 2 (4) No. 1 TDG depending on the transmission of data by telecommunication leads to the application of the TKG to the layers 1-4 and the TDG to the layers 5-7 of the ISO/OSI reference model. Apart from the data protection of § 89 TKG and the TDSV, there is also the TDDSG. In this context, the user's right to information of § 7 TDDSG results in an increase of duties of service providers. Because of its high degree of abstraction, the ISO/OSI model will be applicable to future developments as well (Even today the Internet telephony is not limited to the transmission of voice-data.). Thereby legal certainty and clearness can be achieved.