Public Value Content Selected – (How) Will It Be Privileged?

The German media authorities (“LMA”) have completed the determination of the public value (“PV”) offers in broadcasting and telemedia services in accordance with the newly introduced Sec. 84 of the Interstate Media Treaty (Medienstaatsvertrag or MStV). Eligible video and audio providers will be listed in a specific order and must be easy to find on user interfaces of platforms and smart TVs. What that exactly means and whether the selected offers must be privileged over others is all but clear.

Background

Well-informed citizens and a diverse media landscape are essential for a functioning democracy. That is why the German media legislator seeks to ensure prominence of public value content. The LMA have now identified such offers in a public tender process and will soon publish a list ranking all relevant offers in a specific order. Providers of platforms and user interfaces are uncertain how to deal with the listed content in order to be compliant with the new prominence requirements.

Legal framework

Services with a “particularly significant contribution to the diversity of opinion and content” in Germany’s media landscape must be easy to find on user interfaces (Sec. 84 (3), (4) MStV). This newly introduced requirement shall ensure user’s attention to these broadcasts and telemedia services and shall incentivize investments in the production of public value content. User interfaces include electronic program guides (“EPGs”) and software frontends running on smart TVs and connected accessories, such as TV sticks or set-top boxes. The LMA determine public value offers pursuant to criteria that include, among others, the portion of news and information programming, local content, European works, self-productions, content for young audience, and the number of professional journalists involved in producing the content (Sec. 84 (5) S. 2 MStV, Sec. 7, 8 of the Public Value Statute).

The procedure

The LMA received a total of 325 applications by video and audio providers of broadcasts and telemedia services. The applications were reviewed by the Commission for Approval and Supervision (Kommission für Zulassung und Aufsicht or “ZAK”), the joint LMA body ensuring a unified approach in media law enforcement. ZAK decided unanimously to select 290 offers, and the LMA North Rhine Westphalia has sent out formal notifications concerning results to the applicants. Once the deadline to raise objection against the formal decisions has been expired, the selection will become final. The determination is valid for a period of three years.

List of chosen providers to be published

Each of the around 290 successful applicants will be included in a list that will be published on the LMA’s website shortly. There will be separate lists for video and audio providers. The listed offers must then be taken into account by providers of user interfaces when implementing increased visibility. The order in which providers are listed is of high interest as the providers contribution to public value is considered in descending order and may have an impact on visibility.

What does “easy to find” mean?

Easy to find means easy to find, not less but not more either. That does not necessarily mean a privilege of PV content over other content. Prior to the introduction of PV content, all offers on a platform or user interface (“UI”) had to be “easy to find”. Arguably, offers shown (also) in an alphabetical order are all easy to find. In addition, if the UI offers categories or genres (news channels, sport channels, etc.), then all channels in a category should be easy to find, unless there are too many channels in one category. Only a list in the order of audience shares (as used for common EPGs) would favor offers that are more popular and thus be questionable. PV channels with small audience shares would not necessarily be easy to find. However, a search tool granting direct access to each individual offer, which is anyway mandatory, helps users finding specific content. In addition, a specific PV button on the UI’s start page, which would direct the user to the listed PV content, could ensure that PV content is easy to find.

In light of the uncertainty over the “easy to find” requirement, straightforward law enforcement is not an option. The LMA have little choice than to reach out to the relevant industry players in order to reach a common understanding on how to implement the new rule. The process will take time, and, in the end, the “would be” privileged PV content providers may be disappointed over the results.