Out-Law / Your Daily Need-To-Know
The German government is considering setting up a new regulator to monitor digital markets.
The new regulator would observe the effects of digitisation on a market and could be given powers to intervene where competition or consumer law compliance issues arise and there is a public interest in such intervention, according to a white paper published by Germany's Federal Ministry for Economic Affairs and Energy.
In its paper, the Ministry also outlined plans to update German competition law to allow more mergers involving start-up companies to be subject to scrutiny by the Federal Cartel Office (FCO).
Under those plans, the FCO will be able to scrutinise deals involving target businesses that generate less than €5 million in turnover in Germany where the purchase price for those businesses exceeds €400m.
The Ministry also said it backed plans that would see 'over-the-top' communication service providers subject to the same rules on consumer protection, data protection and security as traditional telecoms companies.
The Ministry also said that it wants to make it easier for businesses to access data held by other companies and that sector regulations could help in this respect. It said, for example, that data held by car manufacturers could be shared with businesses providing repair and maintenance services.
According to the paper, the Ministry encouraged businesses to disclose when they use "self-learning algorithms" and commit to ethical standards on transparency and verifiability when relying on automated decisions, while the Ministry also said it is keen to support the development of "secure and trustworthy 'digital identities'".
The Ministry also referred to new data portability rules which will apply under the new General Data Protection Regulation (GDRP). The ministry said the European Commission should carry out a review into the effectiveness of the data portability rules in the middle of 2020. It also said that competition and copyright issues would need to be considered if data portability rights are to be extended to non-personal data.
Changes to Germany's Telemedia Act will also be made, the Ministry said. The reforms will ensure German law accords with a 2016 ruling by the EU's highest court.
The Court of Justice of the EU (CJEU) in that case said businesses that provide free Wi-Fi to customers can be held liable for copyright infringement carried out by people using their internet services on an anonymous basis, even if they are required to log in to access such services.
The CJEU said, though, that rights holders who are harmed by that infringement are not entitled to claim compensation from the operators of those networks for that infringement. Instead, rights holders can obtain injunctions against the Wi-Fi network operators to prevent "the continuation of that infringement".
According to the judgment, injunctions can be limited to the extent that they force the Wi-Fi providers to prevent customers from accessing copyright infringing material by requiring them to implement a system of password-controlled access to the internet through their Wi-Fi connections. Those password systems must, however, require prospective internet users to "reveal their identity", the Court said.
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