Germany: New State Treaty on Media has entered into force – an overview

Written on 24 Nov 2020

The State Treaty on Media (Medienstaatsvertrag - MStV) of the German states (Bundesländer) entered into force on 7 November 2020 and replaces the State Treaty on Broadcasting (Rundfunkstaatsvertrag - RStV).

For the first time, intermediaries of media content are now also subject to regulation by the State Treaty. The intermediaries are covered by the MStV as "media platform", "user interface", "media intermediary" and "video sharing service". This means that all digital platforms that have joined the classic media as media content providers are now under regulation. The 14 state media authorities supervise the operators of the platforms, including those based abroad if their services are intended for use in Germany (Sec. 1 (8) MStV).

According to the legislators, the new rules are intended to protect diversity of opinion in the media world and to include so-called "gatekeepers", such as providers of search engines, smart TVs, language assistants and social media. In contrast, the previous media concentration law with its focus on linear television was taken over unchanged from the old State Treaty on Broadcasting.

A media platform is any provider that combines broadcasting and journalistically and editorially designed websites into a single offering (Sec. 2 (2) no. 14); user interfaces are overviews of the offerings of individual media platforms (Sec. 2 (2) no. 15). Both must notify their activities to the competent state media authority (Sec. 79 (2)) and are obliged to transparency regarding their principles for the selection of offers (Sec. 85). They are also obliged, inter alia, not to modify the content disseminated or to overlap it with advertising (Sec. 80 (1)). Media platforms must also ensure that certain capacities are available for public service broadcasting in their offer (Sec. 81 (2) and (3)) and must not unreasonably impede access to their platform (Section 82). User interfaces are also obliged not to treat similar offers differently in terms of their findability without objectively justified reason (Sec. 84 (2)).

Media intermediaries, i.e. every service that aggregates journalistic and editorial services of third parties (Sec. 2 (2) no. 16), must appoint an authorised recipient for notifictions (Sec. 92). In addition, they are also subject to requirements regarding transparency with regard to the algorithms used (Sec. 93) and freedom from discrimination (§ 94).

Video-sharing services (Sec. 2 (2) no. 22) are subject to various regulations regarding their advertising content. Among others, advertising must be clearly recognisable as such and its content must not physically or mentally impair children and adolescents; in addition, they must take measures to reduce the visual impact of non-recommended foods on children (Sec. 98).

Violations of the provisions of the MStV can be punished with fines of up to EUR 500,000 (Section 115 (2)).

It remains to be seen whether all new rules are compatible with EU law. During the notification procedure, the European Commission criticised: "Some provisions of the German draft Treaty raise concerns as to their compatibility with EU law. “