Content media

Selected public value content – (How) will it be privileged? – Broadcasting: cinema, television and radio

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The German media authorities (“LMA”) have completed the determination of the public value (“PV”) of broadcast and telemedia service offerings in accordance with the new Sec. 84 of the Interstate Media Treaty (Medienstaatsvertrag or MStV). Eligible video and audio providers will be listed in a specific order and should be easy to find on platform and smart TV user interfaces. Exactly what this means and whether selected offers should be favored over others is anything but clear.

Background

Well-informed citizens and a diverse media landscape are essential to a well-functioning democracy. This is why the German media legislator seeks to ensure the prominence of content of public value. The LMA has now identified these offers through a public tender and will soon publish a list ranking all relevant offers in a specific order. Platform and UI vendors don’t know how to process listed content to comply with new viewability requirements.

Legal framework

Services that “contribute particularly significantly to the diversity of opinion and content” in the German media landscape must be easily found on user interfaces (Art. 84 (3), (4) MStV). This newly introduced requirement will ensure users’ attention to these telemedia programs and services and encourage investment in the production of content of public value. User interfaces include electronic program guides (“EPGs”) and software interfaces running on smart TVs and connected accessories, such as TV sticks or set-top boxes. The LMAs determine public value offerings according to criteria which include, among others, the share of news and information programmes, local content, European works, self-productions, content for young audiences and the number of professional journalists involved in the production of the content (84 (5) S. 2 MStV, Sec. 7, 8 of the Public Value Act).

The procedure

The LMA received a total of 325 applications from broadcast video and audio providers and telemedia services. The applications were examined by the Accreditation and Control Commission (Kommission für Zulassung und Aufsichtor “ZAK”), the joint body of the LMA ensuring a unified approach in media law enforcement. ZAK decided unanimously to select 290 offers and the LMA of North Rhine-Westphalia sent formal notifications of the results to applicants. Once the deadline for objecting to formal decisions has expired, the selection will become final. The determination is valid for a period of three years.

List of selected suppliers to publish

Each of the approximately 290 successful applicants will be included in a list to be posted on the LMA’s website shortly. There will be separate listings for video and audio providers. The listed offerings should then be considered by UI vendors when setting up increased visibility. The order in which vendors are listed is of great interest as vendor contribution to public value is considered in descending order and can impact visibility.

What does “easy to find” mean?

Easy to find means easy to find, not less but not more either. This does not necessarily mean a privilege of PV content over other content. Prior to the introduction of PV content, all offerings on a platform or user interface (“UI”) had to be “easy to find”. It can be said that the offers displayed (also) in alphabetical order are all easy to find. Also, if the UI offers categories or genres (news channels, sports channels, etc.), all channels in a category should be easy to find, unless there are too many channels in a category. Only a list in order of audience share (as used for common EPGs) would favor the most popular and therefore questionable offerings. PV channels with small audience shares would not necessarily be easy to find. However, a search tool allowing direct access to each individual offer, which is mandatory anyway, helps users to find specific content. Also, a specific PV button on the start page of the UI, which would direct the user to the listed PV content, could ensure that the PV content is easy to find.

In light of the uncertainty surrounding the “ease of finding” requirement, direct enforcement is not an option. The LMA has no choice but to reach out to relevant industry players to reach a common understanding of how to implement the new rule. The process will take time, and in the end, “potential” preferred PV content providers may be disappointed with the results.

Due to the generality of this update, the information provided here may not be applicable in all situations and should not be applied without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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