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New Steps into Media Regulation: German Pioneer Legislation for Platforms, User Interfaces and Intermediaries

Monday 2 August 2021

Marc Dümenil
Heuking Kühn Lüer Wojtek, Düsseldorf
​​​​​​​m.duemenil@heuking.de

Introduction

Germany’s new State Treaty on the modernisation of media legislation (Medienstaatsvertrag or MStV) has been in force since 7 November 2020, further developing media regulation in Germany. It replaces the previous State Broadcasting Treaty and transposes EU Directive 2018/1808 on audiovisual media services (AVMS Directive) into national law.

In Germany, media regulation is the responsibility of its 16 federal states, which means regulations within Germany could differ significantly. In order to create uniform nationwide regulations, the 16 federal states signed a multilateral state treaty. As a second step, each state parliament will adopt the regulations and transform them into a state law. Once this step has been taken, the state treaty can enter into force.

Why did the federal states resolve a media treaty as opposed to a broadcasting treaty? EU and national legislators have acknowledged that the media landscape has changed fundamentally. There is an ever-increasing need to adapt national legislative frameworks to the new fruits of digitalisation as well as to the new market players who not only use new media services but innovative forms of distribution. The development has been rapid that even the German language has difficulty in grasping these changes. The relevant terms are now no longer just Fernsehen (television) and Radio (radio), but rather ‘streaming’, ‘user-generated content’, ‘Let’s Plays’, ‘influencers’, ‘gatekeepers’, etc.

This article provides an update on the new regulation of new media services.

Previous regulation

In the mid-1980s, Germany paved the way for the so-called dual broadcasting system. Until then, when private broadcasting was added to the system, there had only been public broadcasters. The first State Broadcasting Treaty, signed in 1987, legally defined this dual broadcasting system. Since then this dualism has been the structural basis for regulations under German broadcasting law. In its original sense, it covers only linear television and radio services.

It was not until 2007 that new regulations were introduced, namely those for ‘telemedia’. Ever since, telemedia has included all electronic information and communications services, unless they are telecoms services or telecoms-based services or broadcasting. These regulations were not a good fit with the dual structure of the broadcasting system, which dated back to the pre-internet age. Although the regulations were designed to address actual technological progress, especially in the area of online services, the mere division between broadcasting and telemedia remained in many respects behind the demands of the internet age.

The new State Media Treaty

In time, the German legislature became aware of this. In the preamble to the new State Media Treaty, it précises:

‘The increase in media services (broadcasting and telemedia) in Europe as a result of the opportunities offered by progressive digitisation is strengthening the diversity of information and cultural offerings in German-speaking countries. At the same time, especially in a media world increasingly shaped by the internet, there is a need for contractual guidelines that safeguard journalistic standards and promote equal opportunities for communication. For the services offered by the dual broadcasting system and the press, regulations are also needed to ensure access to distribution channels and non-discriminatory accessibility.’

In this way, the State Media Treaty commits itself to the goal of drawing up ‘guidelines’ for the digital media world.[1] In a protocol declaration, the German federal states declared:

‘In this context, the State Media Treaty, in order to safeguard pluralism, introduces for the first time comprehensive media-specific provisions for such service providers that impart media content or serve to broadcast it – so-called gatekeepers (eg, search engines, smart TVs, voice assistants, app stores, social media). These services are categorised as media platforms, user interfaces, or media intermediaries.'

In addition to media platforms, user interfaces and media intermediaries, special regulations also now apply to broadcast-like telemedia and video sharing services. Now, due to their special importance, a discussion of the new regulation of the initially named telemedia will follow.

The ‘new’ media

Media platforms and user interfaces

A media platform combines the services of other players. It provides an overall package consisting, for example, of broadcasting, broadcast-like telemedia and/or telemedia. They therefore enable the user to access other players’ services from a single platform. For instance, the user could have access to Netflix, Amazon Prime, but also to public and private broadcasting.

The regulation addresses media platforms with regard to the above-mentioned reasons, in order to ensure variety of opinion and services. The central aspect in the regulation of access to media platforms is that content providers must not be unfairly hindered by the media platform or treated differently without an objective reason. Media Platforms must also disclose their conditions of access to the regulatory authorities and any tariffs and fees must be reasonably determined.

The new regulation no longer differentiates between types of transmission. Whereas the regulation previously affected only platforms of infrastructure operators, all types of media platforms are now covered.

However, not only the media platform as such is subject to regulation, but also the user interface. The user interface provides an overview of the content of individual or multiple media platforms. Therefore, a single media platform’s user interface is already subject to this regulation.

As well as access to the media platform, the content in the user interfaces must be easy to find and comply with certain standards. The following also applies here. There is to be no unreasonable hindrance and no unequal treatment of similar services without objective reason.

The legislature identified that user interfaces were previously regulated by only one subsection.[2] This was not in line with the major importance of user interfaces for the key aim described above. The sheer number of services offered can lead to a threat to diversity, specifically when it is no longer feasible for the user to have an overview.[3] The user is then literally dependent on their user interface for their decision-making.[4] However, diversity is at risk when diversity is not desired by the operator, it does not pay off or it is compromised by algorithms. The user is no longer given diversity, if they only see what they supposedly want to see via the user interface.[5]

For this reason, user interfaces must ensure simple access to certain content according to certain criteria. For example, broadcast and telemedia content that makes a particular contribution to diversity of opinion and services must be easy to access, and the provider must make their criteria for selection transparent.

Media intermediaries

According to the new State Media Treaty, so-called media intermediaries are also now subject to specific regulation. Unlike platforms and user interfaces, which were to a certain extent already subject to regulation under the State Broadcasting Treaty, the concept of media intermediary is new, as it the regulation of media intermediaries internationally.[6]

In particular, these players mediate journalistic and editorial content from third parties to users. Media intermediaries collect, select and make such third-party content publicly available journalistic, without combining this into an overall package. This term therefore covers a significant number of online services including search engines, social networks and user-generated content offerings, such as YouTube. Due to the known market power of these services, there are concerns over threats to diversity of opinion.[7]

The decisive criteria for differentiation from the media platform is the lack of an overall package offered by the media intermediary. The media intermediary only selects third-party services, whereas the media platform itself determines an overall product portfolio.

Media intermediaries’ selections are not chosen with regard to the content. Rather, they set out abstract selection criteria and apply these criteria with the help of algorithms for compiling the content.[8]

Ultimately, however, they are the deciding factor for discoverability and the user’s ability to receive content.[9] If diversity of opinion is affected, according to the above principles, then regulatory intervention is required. For this reason, the service must contain journalistic and editorial content.

The regulation focus is also on transparency and non-discrimination. Media intermediaries are now required to disclose, not only their access criteria (and retention criteria), but also the criteria for aggregation, selection and content presentation. This also includes information on how the algorithms work. Moreover, the media intermediaries must disclose changes to the algorithms in use.

At first sight these processes are often not transparent to the user. However, the non-transparency of such systems results from their user-friendliness. The system displays the result to the user, not the selection process and the selection criteria. Generally, the user is not interested in the process or criteria. However, the reasons for the lack of transparency is often due to technical issues and the protection of trade secrets.[10] The new transparency regulation should not necessarily lead to disclosure of trade secrets. Its aim is to make the decision-making system as such transparent but the algorithm itself must not be disclosed. A certain level of abstraction will be permissible.[11]

Some criticism relates to the concern that a search engine can hardly meet requirements of non-discrimination. The display of the most relevant results excludes equal treatment of all possible results per se.[12] In other words, search engines must treat content unequally in the interest of users in order to fulfil their function. The search engine must answer user requests in the best possible way for them.[13]

This is correct. However, critics disregard the fact that it is not unequal treatment that is prohibited, but discrimination. Unequal treatment may take place if there is an objective reason for it (fairness). An objective reason may already lie in the arguments of the critique. In addition, discrimination under the new regulations is present if there is a deviation from their own published criteria. However, the deviation from their selection criteria will frequently not be in the interest of the media intermediary. It will adhere to its own criteria because it designs its algorithms to function in that way. Anything else would lead to chaos.

Conclusion

The new MStV has marked a turning point in media regulation in Germany. [14]  It enters new fields and aims in particular to safeguard diversity of opinion. Protecting democratic decision-making processes is a legitimate purpose. Time has shown that there are plausible reasons for assuming that there are threats to democratic decision-making processes.[15] The possibility of corresponding risks arising in future cannot be ruled out.[16]

In this respect, one could label the new regulation as a preventive defence law, with the goal of protecting democracy. This initiative is therefore remarkable and may well serve as an inspiration or blueprint for other legal systems.[17]


Notes

[1] Martini, in: BeckOK InfoMedienR, 31 Ed 1 Feb 2021, MStV Präambel Rn 26.

[2] So Gummer/Atamanczuk, in: BeckOK InfoMedienR, 31 Ed 1 Feb 2021, MStV s 84 Rn 1.

[3] Gummer/Atamanczuk, in: BeckOK InfoMedienR, 31 Ed 1 Feb 2021, MStV s 84 Rn. 3.

[4] Gummer/Atamanczuk, in: BeckOK InfoMedienR, 31 Ed 1 Feb 2021, MStV s 84 Rn. 3.

[5] Gummer/Atamanczuk, in: BeckOK InfoMedienR, 31 Ed 1 Feb 2021, MStV s 84 Rn. 4.

[6] Liesem, ZUM 2020, 377.

[7] Heilmann, MMR 2020, 162, 163f.

[8] Siara, MMR 2020, 523, 525.

[9] Liesem, ZUM 2020, 377.

[10] Liesem, ZUM 2020, 377, 379.

[11] Zimmer, in: BeckOK InfoMedienR, 31 Ed 1 Feb 2021, MStV s 93 Rn. 14.

[12] Siara, MMR 2020, 523, 526; Kottmann, ZUM 2019, 119, 120.

[13] Kottmann, ZUM 2019, 119, 120.

[14] Siara, MMR 2020, 523, 526.

[15] Stichworte: search engine bias; resonant spaces; filter bubbles.

[16] Liesem, ZUM 2020, 377, 378.

[17] Liesem, ZUM 2020, 377, 382.