"Courageous Step, Further Discussions Necessary"

The Hans-Bredow-Institut for Media Research welcomes the step taken by the Länder to modernise media regulation and adapt it to new forms of supply and use. Given the developments of recent years, this step is necessary. In the area of constitutional broadcasting, the Länder have a mandate, which governments and parliaments must also fulfil.

Accordingly, the core of the draft submitted aims at the inclusion of new media actors in the scope of application of the treaty. Due to their potential for individual and public opinion formation, the Interstate Media Treaty provides provisions for non-infrastructure-based media platforms, for attention-directed user interfaces and for the conceptually new service category of media intermediaries for the first time. It was these formats that were also discussed in various working groups within the framework of the Bund-Länder-Commission on Media Convergence from 2014 to 2016. The Institute was involved in drafts which were part of the Commission's basis for discussion (Kluth/Schulz, Konvergenz und regulatorische Folgen [Convergence and Regulatory Consequences], 2014).

With a view to the respective opinion formation-related potentials for influence, the approaches of a graduated regulation of different offer formats meet the requirements of a differentiated regulation in this area.

In some cases, however, the draft reduces the complexity of public and individual opinion-forming processes and the very different roles and potentials of different formats in detail. The question of the transferability of classical regulatory approaches to hybrid, non-physical platform offerings and very different individual offerings, which are to be summarised under the rather generic term of media intermediaries, is not always easy to answer.

The newly included media platforms can be regarded as helpful approaches in the form of requirements for the regulatory responsiveness of the regulatory addressees as well as increased transparency requirements for better external verifiability. On the other hand, general prohibitions of discrimination in non-infrastructure-based platforms and content within the framework of the provision of services by media intermediaries appear to range from demanding to problematic – especially with regard to the necessity in the context of offers that are relatively easily exchangeable from the user's point of view, the wishes for discrimination within the framework of the freedom of information of the users and the fact that any measure to "neutralise" journalistic-editorial content may discriminate against or even displace non-journalistic content.

The Hans-Bredow-Institut believes that further discussions are needed in this respect, which will take a more differentiated look at the specific functions of individual service formats and the potential for influence and adequate approaches to control that occur there. The discussion phase which follows the consultation procedure may also open up the possibility of anticipating the changes and implementation obligations arising from the AVMD amendment at national level and integrating them at this stage or at least ensuring coherence. The institute is very pleased to contribute its expertise to this discourse as well.

Schulz, W.; Dreyer, S. (2018): Stellungnahme zum Diskussionsentwurf eines Medienstaatsvertrags der Länder [Statement on the Discussion Draft of an Interstate Media Treaty of the Länder]. Hamburg, 26 September 2018 (pdf).