The new Interstate Media Treaty (MStV) is supposed to modernise media regulation and adapt it to new forms of offerings and usage. Like the first version, the core of the revised draft aims to include new media actors in the scope of application of the State Treaty. The media law experts Prof. Dr. Wolfgang Schulz and Dr. Stephan Dreyer have again published a statement on this draft.
The second draft of the MStV improves previous inconsistencies, particularly with regard to the definitions, and implements the new European legal requirements from the amended AVMD Directive (one to one). The implementation of an interdepartmental advertising legal framework appears to have been largely successful. Otherwise, the draft adheres for the most part to the planned extensions of the scope of application and the associated service-specific specifications - despite some significant criticism in the previous submissions. The Länder have refrained from justifying their adherence to criticised approaches, so that their own claim to a dialogue during modernisation is only fulfilled to a limited extent. The step taken by the Länder to reform the existing media order and adapt it to the developments of recent years is to be welcomed in principle. The inclusion of new types of services in the scope of application of the MStV is understandable and in some cases even necessary. The approaches of a graduated regulation of different services with regard to the respective opinion-forming potentials for influence will meet the requirements of a differentiated regulation in this area. However, the draft still reduces the complexity of public and individual opinion-forming processes and the very different roles, functions and potentials of new service formats in particular. 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. In any case, what becomes clear is the difficulty of distinguishing between platforms and intermediaries and the possible negative effects of potential regulatory overspills of a media-centric media law that also affects non-media content. A detailed assessment of the legal consequences is needed in order to avoid regulation in areas that are no longer covered by the regulatory mandate. In the case of the newly included media platforms, the guidelines on the regulatory responsiveness of the regulatory addressees and increased transparency requirements for better external verifiability can be regarded as sensible approaches. In contrast, general prohibitions of discrimination and privileged conditions for non-infrastructural platforms and content in the context of the provision of services by media intermediaries appear to be demanding to problematic. Especially in view of the necessity in the context of services 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 users and the fact that any obligation to neutralise journalistic-editorial content also discriminates against or even displaces non-journalistic, non-media content.
From the HBI's point of view, further discussions in the form of genuine dialogues are necessary, which take a more differentiated look at the specific functions of individual service formats and the potential for influence and adequate regulatory approaches. The Institute is happy to contribute its expertise to this discourse.
Dreyer, S.; Schulz, W. (2019): Stellungnahme zum zweiten Diskussionsentwurf eines Medienstaatsvertrags der Länder [Statement on the Second Draft of an Interstate Media Treaty]. Hamburg, 09 August 2019.(pdf).
The complete statement can be downloaded here (pdf).