Media & Unfair Competition Law

The level of influence that global digital companies have, not only on communication and how users form their opinions, but also on social participation and services of general economic interest, has increased enormously in recent years. At the same time, digital transformation is changing the way users receive media and how media are produced and distributed. Driving this trend are media platforms, intermediaries and user interfaces.

This is reflected in the German State Media Treaty (MStV), which came into force on 7 November 2020 and replaces the "old" German Interstate Broadcasting Treaty (RStV). It not only implements the EU Audiovisual Media Services Directive (AVMSD) but is intended to regulate platforms and intermediaries to ensure there is diversity in the media and with regard to differing opinions. Platforms and intermediaries are characterised in particular by the fact that they also – or actually even exclusively – convey third-party content online and, therefore, have a particular influence on ensuring opinions are diversified.

Essentially, the participants will be subject to non-discrimination rules and far-reaching transparency requirements. This is accompanied by the comprehensive monitoring and information rights of the supervisory authorities. In addition, social media is becoming increasingly political. Therefore, another focal point of the amendments to the German State Media Treaty (MStV) is the prevention of fake news and disinformation by ensuring comprehensive quality standards for journalistic editorial content as well as the introduction of labelling requirements for social bots. In addition, the German State Media Treaty (MStV) facilitates relief in terms of licensing requirements for live streamers, but also notification requirements for media platforms and user interfaces. These are important building blocks for modernising the legal regulatory framework of platforms.

Requirements under consumer protection law

In the field of competition law, the focus of the German legislator is also on platform operators, among others, which saw duties imposed on them, prompted by the implementation of Directive (EU) 2019/2161 (the "Omnibus Directive"). When ranking third-party goods and services, these platform operators must in future ensure they show how the ranking has come about and which parameters with which quantifiers have been applied. In addition, transparency for consumers will be increased by making sure it is communicated whether or how the authenticity of consumer reviews has been ensured, without the website operator having to guarantee the authenticity of the individual reviews in terms of content. These new regulations coming into force in May 2022 are the subject of the Act to Strengthen Consumer Protection in Competition and Trade Law.

Questions that may arise in the context of the digital regulation of media and competition law include:

• What companies fall within the scope of the regulations?
• How can a company achieve compliance in terms of transparency and fairness?
• Who is affected by the journalistic editorial duties of care?
• How can a provider make sure it provides a diverse range of services and access to the media platform?
• Who is subject to (subsequent) notification requirements?
• What should be taken into account and, if necessary, disclosed when presenting a decision-making system and rankings, the main parameters of an algorithm or customer reviews?
• What complaint management systems should be in place?
• What other requirements will companies face in the future?
• What business models are affected?