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German Court rules that, unlike German law on injurious statements found in newspapers and magazines, there is no “right of reply” to such statements when made on internet
In a German court, a case involved the “right to reply” on the internet under the German Telecommunications Law and the Telecommunication Services Law. Here, the petitioner asked for a preliminary injunction because of the respondent’s website statements. The Dusseldorf District Court denies the preliminary injunction.
The Court holds that the German Telecommunication and Telecommunications Services Laws do not grant a “right to reply” on the internet to present an opposing point of view. This exists only in the case of periodically published, printed journalistic texts such as journals and newspapers. The fact that someone frequently updates the website does not turn it into a periodic publication.
The right of reply tries to balance freedom of speech with protection of the individual. If a published statement injures someone, he or she has the right to respond in the same forum. Periodic, printed publications have considerable influence because of their frequency and their extensive circulation (more than any individual could possibly have) and because of their widespread reputation as regular information providers. In the Court’s view, an internet site lacks the influence of the printed media although persons from all over the world can view it.
Citation: Landgericht Dusseldorf, Beschluss vom 29. April 1998, Geschaftsnummer 12 O 132/98 (nicht rechtskraftig). [The German text of this opinion is on the Internet at www.netlaw.de/urteile].
Filed in: 1998 International Law Update, Issue 10
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APEC states conclude telecommunications mutual recognition arrangement (MRA)
The trade ministers of the 18 Asia-Pacific Economic Cooperation (APEC) nations (including the U.S., Canada and Japan) in the Asia-Pacific regions have concluded an agreement on the mutual recognition (MRA) of telecommunications equipment. It will accelerate technical testing (MRA phase one) and certification (MRA phase two) procedures, and limit duplicative testing of telecommunications equipment. It does not, however, require the harmonization of mandatory technical requirements.
[This MRA is part of APEC's "early voluntary sectoral liberalization" initiative. APEC's goal is to achieve free and open trade and investment in the region by 2010/2020. As part of the strategy, APEC states have selected nine economic sectors for market opening: chemicals, energy sector goods and services, environmental goods and services, fish, forest products, gems and jewelry, medical equipment, toys, and the present mutual recognition agreement in telecommunication products and systems. The parties agree to phase out tariffs and other restrictions in all sectors].
The telecommunications MRA provides a mechanism whereby the exporting country designates technical “Conformity Assessment Bodies.” They will test and certify the conformity of telecommunication equipment to the importing country’s requirements. In particular, it
- Applies to all equipment subject to telecommunications regulations (wireline and wireless, terrestrial and satellite).
- Provides procedures for designating, recognizing and monitoring “Conformity Assessment Bodies.”
- Requires the parties to accept the results of the procedures carried out by these “Conformity Assessment Bodies.”
- Establishes a Joint Committee to implement and supervise the application of the Arrangement.
The MRA does not by itself create legally binding obligations. Each country must implement the MRA in some form. The U.S. is planning to exchange letters to bring the MRA into force as a trade agreement with APEC trading partners.
In a related matter, the Federal Communications Commission (FCC) has published a notice of proposed rulemaking to implement the MRA as well as the multi-sectoral U.S.-EU MRA [see 1997 Int'l Law Update 111. The U.S. and the EU signed the Agreement on May 18, 1998]. The FCC is proposing rule changes, inter alia, to shorten the time it takes for foreign companies to distribute telecommunications products in the U.S. based on the MRAs (see 63 Federal Register 31685, June 10, 1998).
Citation: U.S. Trade Representative press releas¬es 98-58 (June 5, 1998) & 98-62 (June 23, 1998).
Filed in: 1998 International Law Update, Issue 7
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Mexico publishes Protocol on satellite transmissions agreement with U.S. for video and audio programs
Effective October 16, 1997, the Mexican Official Gazette has published another Protocol Concerning the Transmission and Reception of Signals from Satellites for Services in the United States and the United Mexican States. It covers satellite transmissions for video and audio programs but does not apply to direct transmissions to households. The U.S. and Mexico had previously entered into a separate Protocol on “direct-to-home” satellite services [see 1996 Int'l Law Update 145].
The Protocol will facilitate satellite services by setting forth specific requirements such as the conditions and technical criteria for satellite use. Essentially, the Protocol grants mutual recognition of licenses for Mexican and U.S. providers (see Article 7). The Annex lists the permitted band frequencies for such services. The government agencies administering this Protocol are the Mexican Department for Communications and Transport (Secretaría de Comunicaciones y Transportes, SCT), and the U.S. Federal Communications Commission (FCC).
Citation: Protocolo concerniente a la transmi¬sión y recepción de señales de satelites para la prestación de servicios fijos por satelite en los Estados Unidos Mexicanos y los Estados Unidos de America, 1998 Diario Oficial de la Federaci¬ón, March 17, 1998.
Filed in: 1998 International Law Update, Issue 5
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U.S. and EU conclude Agreement on Global Electronic Commerce
On December 5, 1997, at the U.S.-EU Summit on Guidelines for Future Work on Trade in Global Electronic Commerce (GEC), the U.S. and the EU concluded an Agreement on GEC trade including a commitment to “duty free cyberspace.”� The parties issued a joint statement to this effect.
With the “Joint EU-U.S. Statement on Electronic Commerce,”� both parties agree that:
- When parties order goods electronically and deliver them physically, there will be no additional import duties because of the electronic communications (Section 4.(i)).
- They will support self-regulatory codes of conduct and technologies to gain consumer confidence, involving all market players including consumer advocates (Section 5.(i)), and
- They will cooperate in R&D and electronic commerce technologies within the framework of the EU-U.S. Science and Technology Agreement (Section 5.(iv)).
Citation: U.S. Trade Representative press release 97-103 (December 9, 1997), available through the USTR Fax Retrieval System at (202) 395-4809, or at the USTR website www.ustr.gov.
Filed in: 1998 International Law Update, Issue 1
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U.S. implements market-opening commitment of WTO Basic Telecom Agreement by adopting new standard for foreign participation in U.S. satellite services market
The U.S. Federal Communications Commission (FCC) has issued a Report and Order adopting a new standard for allowing foreign companies to take part in the U.S. satellite services market. The Report and Order carry out the market-opening commitments of the WTO Agreement on Basic Telecommunications Services [WTO Basic Telecom Agreement] [incorporated into the General Agreement on Trade in Services (GATS) by the Fourth Protocol of GATS, 36 I.L.M. 336 (1997)]. Under the WTO Basic Telecom Agreement, the U.S. must let foreign suppliers provide basic telecommunications services, including satellite services, in the U.S. Some 68 other WTO Members have made similar commitments.
The regulatory changes provide a framework for evaluating requests by non-U.S. licensed satellites for access to the U.S. economy. The FCC will review the applications to decide whether a grant of authority comports with the public interest, convenience, and necessity [47 U.S.C. 301]. It will take into account such public interest factors as the effect on competition in the U.S., spectrum availability, eligibility and operating requirements, as well as national security, law enforcement, and foreign policy concerns. The FCC presumes that WTO Member access promotes competition in the U.S. satellites market.
The Commission will publish the effective date of the changes once the Office of Management and Budget has approved the information collection requirements for participating businesses.
Citation: 62 Federal Register 64167 (December 4, 1997).
Filed in: 1998 International Law Update, Issue 1
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Mexico issues general guidelines for private investments in Mexican satellite communication systems
To increase private investments in the Mexican satellite communication systems and to restructure the system as a whole, the Mexican Government has issued General Guidelines. The key elements are (1) public participation in government-run undertakings, and (2) licenses based on Article 29 of the Federal Tele-communications Law. Through announcements in the Official Gazette [Diario Oficial de la Federación], the Government will ask for proposals on the technical and commercial use of the satellite system.
The Guidelines set forth the requirements for such participation, including the posting of bonds.
The effective date of the Guidelines is June 19, 1997.
Citation: Bases generales para la apertura a la inversión privada en el sistema satelital méxicano, 1997 Diario Oficial de la Federación [Mexican Official Gazette], June 16, 1997.
Filed in: 1997 International Law Update, Issue 10
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FCC publishes proposed rules on access of foreign entities to U.S. telecommunications market; EU claims proposed rules violate global agreement on telecom services
On June 4, 1997, the Federal Communications Commission issued proposed rules on foreign participation in the U.S. telecommunications market. The proposed rules would, for example, change the so-called “effective competitive opportunities” (ECO) test, which is used in reviewing applications from carriers from WTO Member States to provide international telecommunications services in the U.S. The purpose of the changes is to prepare for the WTO Agreement on basic telecommunication services, which will take effect on January 1, 1998. That agreement covers 95% of the global telecommunications services and will open domestic markets for foreign competitors.
The European Union (EU) has already criticized the proposed rules. In a statement issued by the Commission of the European Communities, the EU expressed its concerns that the rules do not comply with the WTO General Agreement on Trade in Services (GATS) in the following respects:
- The continuing use by the U.S. of broad or murky “public interest” factors such as “law enforcement,” “foreign policy,” or “trade” concerns in deciding on applications from foreign carriers;
- The use of the unclear concept of “very high risk to competition” for possible refusals of licenses; and
- The assumption that special safeguards are necessary for U.S. telecommunication carriers which are affiliated with foreign carriers that either have market power in destination countries, or do not have international facilities-based competition in the destination market.
The EU has indicated that it might bring a complaint before the WTO.
Citation: 62 Federal Register 32966 (June 17, 1997); European Union News press release No. 54/97 (August 5, 1997).
Filed in: 1997 International Law Update, Issue 9
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To comply with WTO telecommunications open-markets agreement, FCC issues rules for foreign participants in U.S. telecom market
Based on the WTO agreement to open markets for basic telecommunication services, the U.S. Federal Communications Commission (FCC) has issued a final rule for foreign carriers entering the U.S. telecom market [see 47 C.F.R. Part 63].
The WTO agreement covers 95% of the international telecom market and requires the parties to open their markets [see 1997 Int'l L. Update 36]. To meet those requirements, the FCC revised the current U.S. regulations to, for example:
- Revise the equivalency test in authorizing the use of private lines between the U.S. and all other countries for switched services, requiring, for example, that the charges, terms and conditions be “reasonable and nondiscriminatory.” Applications for international common carriers must include that information.
- Require notification of foreign carriers’ plans to invest in an authorized carrier in the U.S.
The effective date of the rules is July 17, 1997.
Citation: 62 Federal Register 32964 (June 17, 1997).
Filed in: 1997 International Law Update, Issue 7
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Mexico and the U.S. conclude treaty on satellite communications
The Mexican Official Gazette has published the treaty concluded between Mexico and the U.S. with regard to satellite signals. [See related article on the conclusion of a protocol to the treaty in 1996 Int'l L. Update 145.]
The purpose of the treaty is (1) to facilitate commercial satellite services in and between Mexico and the U.S., (2) to license according to the rules of the international telecommunications union UIT, and (3) to enable license holders to operate in both countries. Satellites may be used to receive and broadcast information in both countries (Article 4). If foreign property is involved in such uses, it is subject to the national laws of the country where it is used. For example, in Mexico foreign property and copyright claims are subject to Article 12 of the Federal Communications Law of 1995 (Ley Federal de Telecomunicaciones), as well as the Investment Law of 1993 (Ley de Inversión Extranjera).
The competent authorities for purposes of this treaty are: for Mexico the Secretary for Communications and Transport (Secretaría de Comunicaciones y Transportes), and for the U.S. the Department of State. The treaty will enter into force after both countries have notified each other that the treaty has been implemented into national law according to national requirements.
Citation: Decreto de promulgación del tratado … relativo a la transmisión y recepción de señales de satelites para la prestación de servicios satelitales a usuarios, 1996 Diario Oficial de la Federación [Mexican Official Gazette], November 8, 1996.
Filed in: 1997 International Law Update, Issue 3
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U.S. and Mexico sign satellite telecommunications protocol regarding “direct-to-home” (DTH) video services
On November 8, 1996, the U.S. and Mexico signed a “Protocol Concerning the Transmission and Reception of Signals from Satellites for the Provision of Direct-to-Home Satellite Services in the United States and the United Mexican States.” It sets up the conditions and technical criteria for the use of satellites licensed by the U.S. and Mexico for video services delivered between the two countries. For example, it minimizes restrictions on program content. The Protocol should increase distribution outlets for video program providers from both countries and diversify the available programs.
The Protocol is one of several to be negotiated pursuant to the “Agreement Between the Government of the United States of America and the Government of the United Mexican States Concerning the Transmission and Reception of Signals from Satellites for the Provision of Satellite Services to Users in the United States of America and the United Mexican States” of April 28, 1996. The two countries will negotiate other Protocols on fixed and mobile satellite services in the next few months.
Citation: U.S. Department of State Press Release (November 12, 1996); Washington Communiqué (November 8, 1996); Explanatory letter of the Federal Communications Commissions (November 8, 1996). [Readers may obtain the documents from the Department of State, Press Office, Phone: (202) 647-4727].
Filed in: 1996 International Law Update, Issue 12
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