The new German State Media Treaty - legal requirements on telemedia

The new German draft State Media Treaty (Medienstaatsvertrag) is currently still pending in the legislative process expected to come into force already in September 2020 (with some important provisions coming into force only one year later, ie on 1 September 2021).

For the first time ever, the new German State Media Treaty will not only govern the broadcasting of “classic” television and radio services, but also new forms and formats of communication and broadcasting, such as video-on-demand services, social media platforms, app stores, search engines, user generated content and blogging portals as well as electronic language assistants and news aggregators. It will also govern cable network operators and over-the-top (OTT) services such as Whats-App, Skype and Netflix.

Apart from these, the new law will also regulate the offering and design of so-called gate keepers, such as media platforms (Medienplattform), user interfaces (Benutzeroberfläche) and media intermediaries (Medienintermediäre). In addition, video-sharing-services (Video-Sharing-Dienste) will be regulated as well. Moreover, it is very likely that the definition of user interfaces not only applies to Smart TV’s, but also to mobile devices such as smartphones, smartwatches and tablets, even though details remain unclear for the time being. Still, the new State Media Treaty will broaden the entities and market players that will become subject to media regulation.

Furthermore, relevant changes regarding ad-supported media offers were implemented in order to ensure pluralism. For undertakings it is crucial to know which forms of advertisement are still allowed and which bear heavy consequences.

In the following, we have summarised the key requirements of the State Media Treaty in regard to each of the aforementioned gate keepers, as well as in regard to video-sharing-services.

1.1 Media Platforms

Media Platforms are defined as telemedia that consolidates broadcast, telemedia similar to broad-cast and other telemedia into one offering by the operator. This also encompasses software-based offerings which allow access to broadcast, telemedia similar to broadcast and other tele-media. The definition covers platforms such as Magenta TV by Deutsche Telekom but could also be applied to Smart-TVs and their chosen offering of streaming apps or the like.

The following requirements have to be adhered to by media platforms:

1. Authorised Representative: Appoint a reliable authorised representative. For such reliability the representative (1) must have unlimited legal capacity, (2) must have the ability to hold public office, and (3) is domiciled in a state which is a party to the Agreement on the European Economic Area and is liable to legal proceedings. Alternatively, the managing director has to meet such criteria.

2. Grant Access Rights: Access to media platforms by providers of broadcasting services (Runkfunk), broadcasting-like media (rundfunkähnliche Telemedien) and media must not be unfairly restricted. Providers of media platforms must not discriminate against providers of broadcasting and media and, in particular, must not make unreasonable selection decisions.

3. Transparency: Disclosure of the criteria according to which content is sorted, arranged, presented, individualized and modified. Disclosure of recommendation criteria.

4. Notification Obligation: Obligation to notify the competent state media authority one month prior to the start of operation on (1) the start of such media platform, (2) information on the reliability of the managing director or the authorised representative, as well as on (4) the technical and expected range of use.

1.2 User Interfaces

A user interface is the text-, picture- or acoustic-based overview on offerings or contents of one or more media platforms which allows the user to browse, chose and access the offering and content of broadcast, telemedia similar to broadcast and other telemedia. The definition of user interface also encompasses apps or virtual assistance such as Amazon Alexa.

The aforementioned requirements of (1) appointing an authorised representative, on (3) transparency and (4) the notification obligation equally apply to user interfaces. In addition, user interfaces have to adhere to meet the following obligation:

• Easy to find/retrievable content: In deviation to the granting of access rights by media platforms, user interfaces must enable content to be easily found and may not unfairly impede such contents retrievability.

1.3 Media Intermediaries

A media intermediary is defined as a telemedia which chooses, aggregates and makes available journalistic content of third parties without compiling it into an own offering. The definition is aimed at social media, social networks, search engines, blog portals as well as user generated content. However, it can also be applied to news aggregators and speech assistants.

The following requirements have to be adhered to by media intermediaries:

1. Authorized recipient: To enable easy contact in relation to administrative offence proceedings, media intermediaries are obliged to appoint an authorised person in Germany.

2. Transparency: Disclosure of the criteria of access and deletion of content on a media intermediary and disclosure of the central criteria of the aggregation, selection and presentation as well as on the weighting of content. Disclosure of information on the functioning of the algorithms used and (significant) respective modifications. Furthermore, it must be disclosed whether automated agents (eg social bots) are implemented.

3. Non-Discrimination: Media intermediaries must not discriminate against journalistic and editorial content on whose perceptibility they have a particularly high influence.

1.4 Video-Sharing-Services

In regard to video-sharing-services, the State Media Treaty transposes the following obligation of the Audiovisual Media Services Directive into national law:

• Advertisement: video-sharing-services must adhere to the extensive rules on advertising in broadcasting as well as to the rules on the protection of minors. Advertisement that is marketed, sold or compiled by Video-Sharing-Services, or third parties, must comply with these regulations.

Please note that the Audiovisual Media Services Directive imposes further obligations on Video-Sharing-Services, which the German legislator has transposed into other acts, namely the German Telemedia Act (Telemediengesetz – TMG), the Interstate Treaty governing the Protection of Minors in the Media (Jugendmedienschutz-Staatsvertrag – JMStV) and the German Network Enforcement Act (Netzwerkdurchsetzungsgesetz – NetzDG). Under these Acts, Video-Sharing-Services are particularly obliged to introduce systems to protect minors (eg age verification and parental access controls) and to establish procedures for the reporting of user complaints about illegal content and for the resolution of such complaints.

Non-compliance with the new laws may be sanctioned by the competent State Media Authority. Measures are in particular objection, prohibition, blocking, withdrawal and revocation. In addition, certain violations are subject to fines of up to €500,000.

Where processing of personal data is conducted for journalistic purposes, the MStV-E limits the application of the GDPR (Medienprivileg). Controllers may be sanctioned only under the GDPR for violations of the principle of integrity and confidentiality (namely, where controllers do not implement respective security measures) and for the violation of the obligation of data secrecy (meaning the prohibition to use personal data, which is processed for journalistic purposes, for any other purpose).

To be best prepared for the new law and its impact on business in Germany we have explained the most relevant changes so that companies can prepare to take action now – as they already should in a best-case scenario.

Please find here a detailed German summary of the MStV-E.