New Diversity Rules for Social Media in Germany

by Jan Christopher Kalbhenn, LL.M. (Amsterdam)

Background: The rise of Social Media

Obviously one of the most pressing challenges for media regulators is the increasing use of algorithmic-driven news aggregators and the growing dominance and gatekeeper position of big platforms, especially social media platforms. The Internet serves as a space for public communication and opinion formation. Public discourse, advertisement and election campaigns are increasingly taking place online. For example, the reach of the climate movement “Fridays for Future” in social media shows that the Internet has become significantly more relevant for opinion forming.  According to the Digital News Report 2019 in Germany 48% of the people aged between 18-24 say that their most important gateway to news is via one of the algorithmic-driven sources (Social Media, News Aggregators, Search-Engine). In the overall population the score is at 32%.

The threat to diversity of opinion

This structural change not only offers opportunities, but also poses certain risks for the diversity of opinion which is essential for a democracy. For diversity of opinion, it is crucial that as many diverse perspectives as possible are included in the free individual and public opinion-forming process. Intermediaries generally increase the supply of information. Nevertheless, a multitude of information offerings on the Internet does not necessarily guarantee diversity of opinion. Today, the question of the relevance of news and information is decided by its visibility and findability on the internet. The selection and control of content by intermediaries and aggregators is of central importance in this context.  It is a characteristic of search engines and social networks that they filter, personalise and present content to users based on personal data they have collected on them. To serve the overarching business model algorithms are programmed to ensure that the users spend as much time as possible on their respective platforms. However, this can be problematic. The criteria codified in the algorithms alone decide which information offers can be perceived and which cannot. It often remains unclear on which basis the content is selected by the algorithms. This lack of transparency makes public opinion formation potentially susceptible to manipulation. For example did TikTok lately curb the reach for people with disabilities? At the very least, the public discourse is privatised according to the logic of an attention-based business model. The public discourse then is subject to the rules of private entities acting on behalf of their shareholders.

The need of a new
regulation

To summarise the challenges for democracy posed by Social Media one can paraphrase the German Constitutional Court. In July 2018 it had to rule on questions regarding the financing of the public service media. Without being asked the court gave its pronounced opinion on the digitalisation of the media: “The digitalisation of the media and in particular the focus on Internet networks and platforms, including social media, fosters tendencies of concentration and monopolisation in respect of content provider, disseminators and intermediaries.” It continues: “These services do not aim to reflect diverse opinions; rather, they are tailored to the rationale of a business model that aims to maximise the time users spend on a website” (English version here).

The new Interstate Media Treaty

In Germany, so far media regulation in the sense of promoting diversity more or less only knows linear TV. The German Media concentration law is practically inapplicable in the digital world. The positive diversity rules for broadcasters are not applicable on intermediaries nor are the must-carry rules for (cable) platforms. The network enforcement law known across German borders is the first law to regulate social networks. However, it does not directly aim at diversity of opinion but at securing a free discourse. It obliges social networks to speedily delete illegal content (e.g hate speech). So that media law meets the digital challenge, in Germany, there will soon be a major change in the media regulation. Media law will for the first time include so called media intermediaries in the regulatory framework. The new Interstate Media Treaty contains countless other amendments. It implements the AVMS-directive and includes video sharing platforms in the regulatory framework. Also new is an extension of the journalistic due diligence obligations in the online sector, including a new co-regulatory mechanism. The Interstate Media Treaty – Medienstaatsvertrag – will most likely enter into force in September 2020. It must be ratified by all state parliaments, as media law in Germany is a matter of the Länder.

Who is addressed by the new diversity rules?

Within
the framework of the new regulation, the circle of addressees is expanded to so-called
‘Media Intermediaries’. The
definition on Media Intermediary in the new treaty in section 2 no 16 reads as
follows: “Any tele media which aggregates, selects and presents also
journalistic and editorial offers of third parties in a generally accessible
way without combining them into a complete offer”. The new rules do not apply
to Media Intermediaries who a) reach less than one million users in the federal
territory per month in any case; b) are specialised in the aggregation,
selection and presentation of content related to products or services; c) serve
exclusively private or family purposes. The main subjects of application of the
rules are therefore social networks, search engines and news aggregators: Facebook,
Twitter, Google and many more. They will all be subject to media law regulation
in Germany for the first time.

What are the new ‘diversity obligations’?

There are two main
obligations for the Media Intermediaries focusing on diversity. First the
transparency obligations and second the non-discrimination obligation.

  1. Transparency
    obligations

Section 93 states
that in ‘order to ensure diversity of opinion’, providers of Media Intermediaries
shall keep some information easily recognisable, directly accessible and
permanently available. Firstly, the criteria which determine the accessibility
of a content to a media intermediary and its remaining, and secondly, the
central criteria of aggregation, selection and presentation of content and
their emphasis, including information on the functioning of the algorithms
used. All information have to be in understandable language. Any changes in
these criteria shall be immediately notified in the same way. Therefore, in the
end this may be what is called “algorithmic transparency”. Here it will have to
be shown how this can be implemented in practice. The state media authorities
will play a central role in this. Not only in the monitoring process. First of
all, they are commissioned to concretise the legal requirements in joint
guidelines. In view of the wording, which is open to interpretation, this might
be helpful. However, there must be no deviation from the principle that the
essential decisions must be made by the legislator.

There is another
obligation regarding intermediary transparency. It is about the labelling of
Social Bots. According to the new treaty social networks shall ensure that tele
media on their platform indicate the circumstance of automation. The shared
content or message must be accompanied or preceded by a clearly legible notice declaring
that it was created and sent automatically using a computer program controlling
the user account. These provisions on social bots do not impose certain diversity
obligations on intermediaries, neither positively nor negatively, with regard
to media content, but are intended to ensure a minimum standard of equal
opportunities for communication.

  • Non-discrimination
    obligations

 In section 94 the new law states that in order
to ensure diversity of opinion, media intermediaries may not, either directly
or indirectly, unreasonably obstruct journalistic and editorial offers on whose
perceptibility they potentially have a major influence or treat them
differently without objectively justified reason. According to the new law, discrimination
takes place in particular if there is a deliberate and targeted deviation from
the general rules of aggregation, selection and presentation within the meaning
in favour of or at the expense of a specific content. In the future, one of the
decisive factors will be how the undefined legal term “on whose
perceptibility they potentially have a major influence” is interpreted. To
this end, demands are already being made in the debate to remove this
restriction. Again, the state media authorities will play a central role by its
concretization of the new requirements in joint guidelines.

Who will be in
charge?

Only the provider of the journalistic and editorial content concerned may
claim a violation of the
non-discrimination obligations. Enforcement lies within the power of the
competent 14 state media authority.
These are organised on a
federal and state-funded basis and they control compliance with the Interstate Media
Treaty. The State Media Authorities are to develop common guidelines to specify
the new rules for intermediaries. On the one hand, this makes sense in order to
make the criteria of the law manageable, some of which require interpretation.
On the other hand, the constitutional principle of essentiality must be
observed here. This states that the legislator (and not, as in this case, the
state media authorities) must make the essential decisions.

The state media
authorities have far-reaching rights of information and investigative powers
vis-à-vis the media intermediaries. Media intermediaries may be sanctioned if
they violate their obligations. Firstly, some infringements are defined as
misdemeanours and can be punished with fines of up to EUR 500,000. In addition,
the state media authorities are also empowered to take the ‘necessary measures’
according to the general clause of Section 111.

How is the new law
to be assessed?

The Interstate State Media Treaty is the first attempt to adapt the
guarantee of diversity of opinion to the digital space. By its very nature it is difficult
to predict the success of a regulation as complex as the Interstate Media
Treaty. However, it is relatively easy to predict that the current regulation (Rundfunkstaatsvertrag/Interstate
Broadcasting Treaty) would reach its limits sooner rather than later. The main
reason for this is that a large number of purely digital phenomena are
currently being either completely ignored or at least only helpfully regulated.
Nevertheless, the change in media use and the convergence of the media makes it
necessary to look at new distribution channels. Consequently, the new treaty
also includes virtual gatekeepers in the regulatory framework.

It remains to be seen whether this new regulatory model will have resounding success. In any case, it is a courageous and important first step to tackle the challenges of the digital media era. Initial findings will emerge and on the basis of these findings, further steps can be taken. This is particularly important, as the State Media Authorities will be confronted for the first time with digitally dominant global corporations and will have to control and, if necessary, sanction them. International observers will take a close look to see if the new rules work. Or where there is room for improvement. The German debate is already calling for further measures. For example, the report of the Data Ethics Commission of the Federal Ministry of the Interior calls for stricter rules to apply to media intermediaries who act as gatekeepers for democracy. According to the Commission to reduce risks to democracy, ex-ante controls (e.g. in the form of a licensing procedure) should also be considered. A further proposal of the Commission is to oblige gatekeepers to ‘use recommendation algorithms that allow users (at least as an additional option) access to unbiased and balanced information that embodies pluralism of opinion’. However, the debate has just begun.

In any case, procedures for access to the data the platforms collect by
distributing media companies’ content would be required to balance the level
playing field between the media and the platforms (see https://search.coe.int/cm/pages/result_details.aspx?objectid=090000168092dd4d). It is to
be hoped that contributions will also be made at a European level, within the
framework of the competencies, to secure media diversity and the diversity of
opinions in the digital era. The big shot would certainly be a digital European
media platform oriented towards the public interest – Public Open Space (e.g.
the proposal of Hillje, Plattform Europa, 2019). This platform would work with
algorithmic (recommendation-) systems based on democratic values and criteria.
Recommendations should then have a constructive bias. Cognitive scientists
would have to be involved. For this purpose, a more cooperative media order
would first be necessary.

By Jan Christopher Kalbhenn, LL.M. (Amsterdam)

Managing Director of the Institute for Information, Telecommunications
and Media Law at the University of Münster and doctoral candidate at the chair
of Prof. Bernd Holznagel.

The article is based on the manuscript of a speech the author gave at
the EUI CMPF in Florence on 31 January 2020.
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