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A ban on the media state treaty?

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A ban on the media state treaty?

47203 Guest Post by Dr. Jonas Kahl, LL.M. and Simon Liepert 01/14/2022 The messenger service Telegram is to be regulated more strictly. Photo: wichayada-stock.adobe.com

Last but not least, the Federal Minister of the Interior is calling for stricter action against illegal content in the channels of the messenger service. One way could be via the MStV – up to and including blocking, say Jonas Kahl and Simon Liepert.

The messenger service Telegram is still in the focus of politics and the media. It attracted a lot of attention because it is not only a means of communication between friends, families and acquaintances, but also a meeting point and network for extremists and criminals. In an interview with Die Zeit, Interior Minister Nancy Faeser (SPD) threatened to have the service blocked if he continued to refuse to observe German laws. “To say that in the end we will switch off the service – that would be a serious evil for every provider,” said Faeser. Switching off would be very serious and clearly the last resort, according to the minister. Before that, all other options must have been unsuccessful. When it came to regulating the service, the debate often referred to the Network Enforcement Act (NetzDG), which is intended to regulate better law enforcement in social networks. So far, however, another existing set of rules has remained almost unexamined: the Media State Treaty (MStV). This formulates decisive requirements for providers of media intermediaries, which affect both Apple and Google as operators of the app portals through which Telegram is obtained, as well as Telegram itself.

Why the Media State Treaty?

The MStV is the successor to the Interstate Broadcasting Agreement. Its focus is the regulation of broadcasting and telemedia, it is intended to ensure diversity of opinion. Since a reform in 2020, it has also included the “new media”, which also includes “media intermediaries”. According to this, a media intermediary is “every telemedium that also aggregates, selects and makes generally accessible journalistic-editorial offers from third parties without combining them into an overall offer” (§ 2 Para. 2 No. 16 MStV). Media intermediaries, such as search engines or social networks, are of considerable importance for the diversity of opinion due to their mediating position in the communication process. The selective selection of the mediated content influences the offers of third parties and their reception by the user. According to the justification for the law, typical examples are also social networks and app stores. The reference to “also journalistic-editorial offers” is intended to ensure that only potentially opinion-forming offers are recorded. It is sufficient if such offers can be called up at all alongside other content. An editorial design can be assumed if a minimum of content selection and processing is available. It is journalistic when diverse and up-to-date information is selected – and this is presented to the public for the purpose of public communication and opinion-forming. The orientation is therefore extremely wide. Entertainment and amateur journalism should also be included. And so, according to the state media authorities, offers from so-called “Let’s Players” who comment on computer game sequences can already be classified as journalistic-editorial.

Google and Apple as providers of media intermediaries

According to this, Google and Apple as providers of the “Google Play Store” and “App Store” are subject to the regulations on media intermediaries (§§ 91 ff. MStV). Depending on the design, an app portal can also fall under the term if the portal would not be classified as an overall offer and thus as a media platform (§ 2 Para. 1 No. 14 MStV), which is not the case with Google and Apple. There is no question that the “Google Play Store” or “App Store” also offers apps with journalistic-editorial content. Google and Apple have already taken the first steps to meet the requirements of the MStV. They have published guidelines for the app portals, which make statements about the access and whereabouts of the app on the portal, as stipulated by the transparency obligations in § 93 MStV. In addition, domestic authorized recipients (Section 92 MStV) were named whose offices in Hamburg and Munich also establish the local jurisdiction of the state media authorities there (Section 106 (2) MStV).

Transparency obligation and non-discrimination for operators of the app portals

These state media authorities are also responsible for prosecuting discrimination (§ 94 MStV) on these app portals. And there is discrimination if, without objectively justifiable reason, the criteria to be published according to § 93 MStV are systematically deviated from in favor of or at the expense of a specific offer. The guidelines of the app portals exclude false reports, criminal content as well as hatred and hate speech. Likewise, the app providers are obliged to counteract corresponding user-generated content in their app with an effective catalog of measures. So they have to do something about it. Threats, insults, fake news and conspiracy theories, among other things, circulate unpunished in public groups and channels on Telegram. According to the provider website, Telegram generally does not follow up on deletion requests in groups. The content in channels is only checked sporadically according to an internal company procedure. As early as 2018, this led to Telegram being temporarily removed from Apple’s App Store. Given recent developments, the question is whether Apple and Google can let this deviation from their policy standards happen without consequences. The regulations of §§ 91 ff. MStV could represent a starting point for the state media authorities to seek dialogue with the app portal providers. In accordance with their transparency obligation (Section 93 MStV), Apple and Google would then have to explain which criteria they use to specifically decide on access to Telegram content and its whereabouts in the app portals and whether this is done without discrimination (Section 94 MStV).

Why Telegram itself is classified as a media intermediary

There is much to suggest that Telegram itself is also subject to the regulations of the MStV and that the service is also a “media intermediary”. In any case, social networks such as e.g. B. Facebook, which is attested to have a considerable influence on the formation of public opinion, in particular through its news feed function. What connects Telegram and Facebook? The comparability of Telegram with social networks is obscured by the fact that the service is publicly presented as an interpersonal messaging service. But the possibility of individual communication directly between users represents only a selection of the functions of the service. Users can network in public groups with up to 200,000 members around the world and share freely selectable content with each other. In addition, channels can be created or channels can be specifically followed in which content is shared with the public beyond the boundaries of the service. In terms of content, these are partly also journalistic-editorial offers. Public groups and channels as well as the content there can be found with the search function integrated in Telegram. When the app is launched, the user interface shows the latest activities in the groups and channels that are being followed. In this way, a network of its own is created, which influences the formation of public opinion through its mediation activities. As such a media intermediary, Telegram is also subject to the media supervision of the federal states. Telegram would have to name a domestic authorized recipient (§ 92 MStV), but has not done so so far. The state media authorities can punish such a violation as an administrative offense with up to 500,000 euros (§ 115 MStV). Locally responsible would be the state media authority that was first involved in the matter (§ 106 Para. 1 S.1 MStV). In addition, the state media authorities are entitled to take measures according to § 109 MStV in the event of a violation of the provisions. This includes in particular the complaint, prohibition and blocking. However, the latter should be used as a last resort. It should be noted that Section 109 (3) MStV allows measures to block offers against third parties. This applies in the event that action against the provider itself is not feasible or does not promise success. In the past, access and host providers have already been included in administrative proceedings against foreign providers under media supervision law. The state media authorities should therefore consider taking action on the matter themselves and get involved proactively in the current debate about Telegram. dr Jonas Kahl, LL.M. is a lawyer and specialist lawyer for copyright and media law at Spirit Legal Rechtsanwälte in Leipzig. Simon Liepert is a research associate at Spirit Legal Rechtsanwälte.



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