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Hastings International and Comparative Law Review

Abstract

The creation of the Internet and other technological innovations in communications makes the issues and regulations surrounding them of increasingly international proportions. This article discusses the recent German case of Germany v. Felix Somm, which provides an example of the application of the new German Internet law. The new federal and state statutes contain provisions on many of the same topics: the liability of online providers, data protection and protection against violent and pornographic materials. The state statute regulates services that resemble and might eventually replace traditional broadcasting ("Media Services"). The federal law regulates online services that supplement and replace existing telecommunications and other commercial services, such as banking and retail shopping ("Tele Services"). Distinguishing between Tele Services, Media Services and broadcasting can be difficult since the technology is already very similar.

The author compares the German Internet laws to the United States' Communication Decency Act (CDA). The CDA seems to raise similar uncertainties regarding its extraterritorial application. Like the CDA, the new German law limits the liability of Service and Access Providers for the transmission of illegal contents on the Internet. While the German law lays out specific rules that can be enforced against the providers, the CDA does not. Unlike the CDA, the German codes do not raise any new constitutional freedom of speech issues since the German Internet law does not impose any new restrictions on the contents of speech and contains defenses available and acceptable not only to commercial providers but everyone.

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