IT law (Germany)

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IT law is short for information technology law . Terms used in a similar way, some of which are out of date and have a similar meaning, are: computer law, EDP law, information law, internet law , multimedia law and software law . IT law is a field of law that deals with the legal consideration of issues from information technology (IT). As a cross-sectional matter , it extends to relevant sub-areas of all main areas of law. The opposite term to IT law is legal informatics .

History of the field of law and its names

The term IT law has acquired its own meaning since 2006 with the introduction of the title of specialist lawyer for information technology law in Section 14 FAO in 2006. The terms EDP law and computer law are only used today when reference is made to collections mainly founded in the 1990s. The magazine Computer und Recht and the CompR collection of laws in dtv still bear witness to this today . Later, the term EDP law came into use, which lives on today in the name of the Association of German EDV Court Days. Sometimes the term computer science is also used as a reversal of legal informatics . With the advent of the Internet, the term multimedia law was coined as a sub-area that specifically encompassed the legal issues of the Internet (including Internet law ). Today the term information technology law is predominantly used.

Differentiation from other areas of law

In practice, there can easily be thematic overlaps with the areas of: industrial property law, copyright and media law and labor law. Overlaps with administrative law and banking and capital market law are also common. Because of the frequent overlaps in practice, IT law has been broken down into cross-legal application areas such as data protection law, software law or IT criminal law, each of which also falls back on several pieces of legislation.

Subject areas

There is no abstract definition of IT law in German law . However, a kind of description can be found in the Specialist Lawyers Act (FAO).

The abbreviation IT law has been mentioned in the specialist lawyer regulations since 2006: "Information technology law (IT law)" is stated in Section 5 (r) FAO in relation to practical experience.

In § 14k FAO there is a passage that is equivalent to a description of the law of information technology . Because the standard lists the knowledge that a lawyer (in addition to practical experience) has to prove if he wants to obtain the title of specialist lawyer for information technology law . These are in detail:

  1. Contract Law of information technologies , including the design of individual contracts and Conditions ,
  2. Electronic business law, including the drafting of provider contracts and terms of use (online / mobile business),
  3. Basics of intellectual property law in the field of information technology, references to trademark law , in particular domain law ,
  4. Law of data protection and the security of information technologies including encryption and signatures as well as their job-specific features,
  5. The law of communication networks and services, in particular the law of telecommunications and its services,
  6. Public procurement of information technology services (including e-government ) with reference to European and German antitrust law ,
  7. International references including private international law ,
  8. Special features of criminal law in the field of information technology,
  9. Special features of procedure and litigation.

As of January 1, 2013, 354 specialist lawyers (including 50 specialist lawyers) were admitted.

Information technology contract law

This includes all contracts for information technology, namely software, hardware and services. Software contracts are contracts for the creation of individual software, sale, rental, leasing, distribution of standard software, adaptation of standard software (customizing, parameterization), contracts for IT projects, outsourcing, etc.…. The legal nature of software is still controversial among lawyers. The courts treat software as a thing and classify the contracts accordingly. Hardware can also be manufactured, sold, rented, leased or distributed. Services are usually advice on the use, but also adaptation of software. This subject area also includes newer contract models, such as Application Service Providing , Software as a Service and the like, which are often essentially just new terms for old contract models that have not been modified at all or that have not changed much. Important contracts are EVB-IT , the public purchasing conditions for information technology.

In principle, all of the contracts mentioned can be mapped using the rules of German law without essential IT-specific laws. The specialty is that when the contracts are formulated, the technical characteristics of the information technology as well as the special business models of the IT industry are understood and legally implemented.

Electronic Commerce Law

This area is characterized quite well by the addition of online / mobile business . This includes all legal questions of e-commerce. This includes the area of ​​consumer contracts (B2C - business-to-consumer), which is largely characterized by the distance selling law of the BGB (§§ 312b ff, BGB). In addition, internet auctions, internet platforms, Web 2.0, communities and other offers are also included. This area also includes all contracts between companies (B2B business-to-business) that are concluded via electronic media.

Provider contracts are expressly named in the FAO. These are complex because of their special technical features, the diverse liability risks and new normative requirements (e.g. data retention ). In the case of host providers, there is a particular question of availability and liability for possibly illegal content.

Basics of intellectual property law

What is meant here is the right of intellectual property, both to software and to content on the Internet.

Particular emphasis is placed on trademark law , especially domain law .

Data protection law

The right of privacy is for the private sector mainly in the Federal Data Protection Act regulated. The Federal Data Protection Act is also applicable for the public sector of the federal government, for the public sector of the federal states the respective state data protection laws are authoritative. These laws are framework laws that are supplemented or superseded by more specific laws for many areas of life (area-specific regulations). The Telemedia Act contains special regulations for telemedia.

The purpose of data protection is to protect individuals from having their personal rights impaired by handling their personal data. (Section 1 Paragraph 1 BDSG)

The security of information technology, including encryption, affects the legal framework for IT security. In addition to data protection law, these are above all the provisions of the KonTraG , tax regulations, archiving obligations as well as statutory and contractual confidentiality obligations.

Law of communication networks and services

The law of communication networks and services is regulated in Germany by the Telecommunications Act (TKG). The Telemedia Act (TMG), on the other hand, regulates the content and is the subject of section 2, law of electronic business transactions .

Public procurement of information technology services

The public procurement of information technology services is essentially standardized by public procurement law and antitrust law . In procurement law, a special type of procurement, competitive dialogue, was introduced due to the special problems in IT law , in order to take into account the fact that public clients often do not have sufficient IT skills to carry out tenders without support. The EVB-IT as purchasing conditions of the public contracting authority are also to be counted under procurement law .

International references

Because of the cross-border nature of information technologies, especially the Internet, the question often arises as to which law is actually applicable to issues in the field of IT. The private international law (IPR) is in this area, therefore a relevant matter, which sets out the legal (z. B. German, US-American or other national law) a contract is subject, or are law under which other legal issues to decide. Contrary to the wording, it is not about international law , but national law. In Germany, IPR is regulated in the EGBGB , the introductory law to the BGB. It should be noted that the UN sales law is based on an international agreement, but is national law in the contracting states. In Germany, the UN sales law is therefore the German law for certain international contracts. Which national jurisdiction (German, French etc.) has to decide in the event of a dispute is regulated by international procedural law , which each country has formulated for itself. A special feature of IT law is the strong influence of US providers on contracts. This makes localization, i.e. adaptation to German law, necessary, especially in legal dealings with consumers. It should be noted that not only a translation, but also an adaptation of the content is required.

Special features of criminal law

This means the specially created criminal offenses for computer crime, but also regulations, for example in copyright law.

As with IT law as a whole, the peculiarities of Internet criminal law are also a cross-cutting issue.

For example, infringers (owners of websites that violate the law) can be criminally investigated on the web. According to Section 100g of the Code of Criminal Procedure and Section 113 of the TKG, providers are obliged to provide information to the law enforcement authorities, as the right to inspect files according to Section 406e of the Code of Criminal Procedure can then also be used to assert claims under civil law. The legitimate interest required for this in terms of criminal procedure under the StPO lies in the possible assertion of civil law claims by the injured party without the civil law possibility of obtaining the data in the files. A criminal complaint can only open the way to asserting claims under civil law.

Special features of procedure and litigation

Legal disputes in the field of IT law, as in other cross-sectional areas relating to technology, require all parties involved to have a specific technical understanding of the underlying processes.

See also

Legal sources

literature

  • Wolfgang Kilian / Benno Heussen , Computer Law Handbook . Information technology in legal and economic practice (loose-leaf collection), 34th edition, Munich 2018, Verlag CH Beck, ISBN 978-3-406-31830-6 .
  • Timoleon Kosmides: Providing contracts. Systematics and methodology for determining the legal nature and legal consequences , Munich 2010, ISBN 978-3-406-60255-9 .
  • ders., The determination of the legal nature of access providing for the determination of the legal consequences in the event of a fault , in: Taeger / Wiebe (ed.): Proceedings Autumn Academy 2008: From AdWords to Social Networks - New Developments in Information Law , Edewecht 2008, p. 119 -132.
  • Thomas Söbbing, The introduction to the law of information technology (IT law) Legal training - JURA, de Gruyter Verlag, JURA 2010, 915, 922.
  • Jürgen Taeger, The Development of IT Law in 2010 (following the previous article in NJW 2010, 25), NJW 52/2010, 3759.
  • Jürgen Taeger, The Development of IT Law in 2011 , NJW 51/2011, pp. 3696–3702.
  • Christoph Zahrnt: IT project contracts: legal foundations , dpunkt.verlag 2008, ISBN 978-3-89864-474-7 .

Magazines

Individual evidence

  1. ↑ a b Fachanwaltsordnung ( Memento of the original from September 20, 2008 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (FAO) (PDF file; 54 kB) and official announcement of the Federal Bar Association for the corresponding changes to the FAO, BRAK-Mitt. 4/2006 (PDF; 1.8 MB), page 168 ff.  @1@ 2Template: Webachiv / IABot / www.brak.de
  2. ↑ Quotation from § 14k FAO, links not in original
  3. ↑ Federal Bar Association , Statistics (PDF; 21 kB)
  4. ↑ Source: See script from the University of Münster ( memento of the original from August 24, 2009 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. (Status 9/2009), page 503 of 556. @1@ 2Template: Webachiv / IABot / www.uni-muenster.de
  5. ↑ Federal Bar Association ~ Professional Law. Retrieved July 29, 2019 .