Draft new German broadcasting and media law would limit broadcasting licence re-quirements for Let’s Players but introduce stricter regulation for intermediaries and media platforms

Written on 31 Aug 2018

The regulations on broadcasting law as well as the regulation of so-called intermediaries and media platforms continue to be subject to legal and political discussions in Germany. Now, the Broadcasting Commission has established a first draft to reform the areas of online live streaming, media platforms and intermediaries. The draft is still subject to consultation, but it is already worth a look.

Good news first: planned limitations on the broadcasting licence requirement for online live streaming

Under current German law, a broadcasting licence is required for any information and communication service that is

  • linear, i.e. consists of moving images or sound offers simultaneously transmitted to all recipients at a time defined by the provider (in contrast for instance to on-demand videos),
  • journalistically and editorially designed (e.g. in contrast to pure uncommented live cam broadcasts), and
  • distributed according to a programming schedule, e.g. on a regularly basis or with prior announcement.

Based on this definition, German media authorities approached well-known Let’s Players like Gronkh or PietSmiet, requesting them to apply for a broadcasting licence to continue their live streams. If no such application is made and no licence granted, the streaming offer may be prohibited.

That may soon be a matter of the past: According to the new draft, no licence is required for broadcasts on the internet that either have less than 20,000 viewers on average per month or mainly consist of demonstrations and commenting on playing virtual games.

It has not been determined exactly how the authorities will measure the first exemption of 20,000 viewers on average per month. However, with regard to “Let’s play” streams, a general licence free regime is considered. Hence, good news for all Let’s Players as it shows that the specific circumstances and characteristics of their activity have been taken into account and, if the draft remains unchanged on this point, they will not have to apply for broadcasting licences in the future.

So only good news from Germany? Not quite, the draft also provides for strict(er) regulation of other categories of media businesses, i.e. media platforms, user interfaces, and media intermediaries – regardless of whether they are national or international players.

In the course of the convergence of media, changes in user behaviour, ‘Hate Speech’ and potential influence on elections, the draft aims to regulate those market players that might have an influence on the diversity of opinions. As they are the link between users and content, they have an influence on access to and retrievability of content.

The new regulation covers

  • services that aggregate broadcast or broadcasting-like telemedia into a unified offer determined by the provider (media platform),
  • providers of textual, visual or audio overview of the offers or content of these media platforms (user interfaces),
  • providers that aggregate, select and generally make accessible journalistic/editorial offers of third parties, without aggregating them into a unified offer, in particular search engines, social networks, app stores, user generated content portals, blogging portals, news aggregators, and
  • services that enable or facilitate access and visibility for such offers (media intermediaries)

Since the purpose of the regulation is to ensure equal communication opportunities, the requirements for platform operators are being extended, particularly in areas that are related to transparency and non-discrimination. For instance,

  • the central criteria for aggregation, selection and presentation of content and their weighting, including information on the functionality of the algorithms used as well as criteria according to which recommendations are made, have to be disclosed;
  • Social bots are subject to a labelling obligation. Providers of social networks must ensure that this labelling requirement is met.

We have seen in the past that German authorities have been pushing to extend the territorial scope of German law to international players. In case this new draft comes into force, there is no need for pushing anymore. The draft provides for the so-called principle of „market orientation“, according to which all services mentioned above that are intended for the German market fall under the scope of German law.

Overall, the draft would lead to broader and stronger regulation of (international) players by German authorities.

We will continue to report on the legislative process. Stay tuned.

 

Many thanks to our trainee Anna-Lena Beckfeld for her contributions to this article