Helberger, N.

Leerssen, P.

van Drunen, M.

English

International Migration, Integration and Social Cohesion online publications

UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl)UvA-DARE (Digital Academic Repository)Germany proposes Europe's first diversity rules for social media platformsHelberger, N.; Leerssen, P.; van Drunen, M.Publication date2019Document VersionFinal published versionLink to publicationCitation for published version (APA):Helberger, N. (Author), Leerssen, P. (Author), & van Drunen, M. (Author). (2019). Germanyproposes Europe's first diversity rules for social media platforms. Web publication or website,LSE. https://blogs.lse.ac.uk/mediapolicyproject/2019/05/29/germany-proposes-europes-first-diversity-rules-for-social-media-platforms/General rightsIt is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s)and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an opencontent license (like Creative Commons).Disclaimer/Complaints regulationsIf you believe that digital publication of certain material infringes any of your rights or (privacy) interests, pleaselet the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the materialinaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letterto: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. Youwill be contacted as soon as possible.Download date:10 Mar 2023Germany proposes Europe's first diversity rules for social media platforms | LSE Media Policy Projecthttps://blogs.lse.ac.uk/mediapolicyproject/2019/05/29/germany-proposes-europes-first-diversity-rules-for-social-media-platforms/[2-9-2019 12:16:14]   Germany proposes Europe’s first diversity rules for social media platformsTighter regulation of social media and other online services in nowunder discussion in several European countries, as well as in the UKwhere the government has released a white paper outlining itsproposed approach to tackling online harm. Here, Professor NataliHelberger, Paddy Leerssen and Max Van Drunen from the Institutefor Information Law at the University of Amsterdam argue that a German proposal to impose diversity obligations on socialmedia platforms’ algorithms deserves more scrutiny. The proposed lawGermany continues to spearhead the regulation of social media. Last year the country made headlines with theNetzwerkdurchsetzungsgesetz (‘network enforcement law’ or ‘NetzDG’), the most ambitious attempt to regulate platformcontent moderation processes in Europe to date. Now, the German Broadcasting Authority (Rundfunkkomission) hasproposed another law targeting social media platforms, though it has has received far less attention than the NetzDG –andfar less than it deserves. Perhaps this is due to its even more confounding name: Staatsvertraglicher Neuregelungen zuRundfunkbegriff / Zulassungspflicht, Plattformregulierung und Intermediäre – or “Medienstaatsvertrag” for short . To ourknowledge, this is the first regulatory proposal in Europe, and perhaps the world, to impose binding diversity obligations onsocial media platforms’ ranking and sorting algorithms.This decision comes in response to widespread concerns about the dominance of social media platforms such as Facebookand YouTube. While substantial disagreement remains about the precise nature of the problem, it has become clear thatthese platforms have become highly influential in steering audience attention, and providing a gateway for users to receiveall kinds of information — and that their commercial interests in optimizing algorithms for ad revenue may not alwayscoincide with the democratic ideal of a diverse public sphere. In response, numerous regulators, NGOs and academics haveargued that social media platforms should incorporate diversity into their algorithms (e.g. here and here). TheRundfunkkommission, however, is the first to address these concerns with a binding regulatory proposal.In short, the new law would regulate algorithmic diversity and transparency in two categories of services: (1) “videoGo to...Germany proposes Europe's first diversity rules for social media platforms | LSE Media Policy Projecthttps://blogs.lse.ac.uk/mediapolicyproject/2019/05/29/germany-proposes-europes-first-diversity-rules-for-social-media-platforms/[2-9-2019 12:16:14]platforms” such as Netflix and Hulu and (2) so-called “media intermediaries”, which covers a wide range of online servicesincluding social media platforms and search engines. This post describes the key features of this regime, and thendiscusses its significance for online media policy.Europe’s first ex ante regulation of social media ranking and sorting algorithmsFirstly, the Rundfunkkommission is proposing regulation of “video platforms”, which it defines as any “service thatconsolidates audiovisual media into a single offering determined by the provider”. This language appears to addressstreaming services like Netflix or Hulu, and appears to exclude user-generated content services such as YouTube, whichare instead regulated as ‘media intermediaries’. The law exempts video platforms that reach less than 1 million users inGermany per month, as well as e-commerce platforms, and services that serve exclusively private or family purposes(53c(1)).The rules for video platforms are based on Germany’s earlier regulation of PayTV platforms and their Electronic ProgramGuides. This regime includes requirements for the diversity and findability of content, which would now be applied to onlinevideo platforms and their sorting algorithms. In general, video platforms are required to “ensure that the technology they relyon enables a diverse offering”. (52)(c)(1). More specific duties are also included:Non-discrimination: video platforms are prohibited from “unfairly hindering” the content they carry, or “treating itdifferently without a commercially justified reason”, both in terms of the access conditions for content providers andthe search and browsing features for users (52(c)(2), 52(e)(2).Priority for public broadcasting content: Public broadcasting content, for those platforms that offer it, should be“especially highlighted and made easy to find”. (52(e)(3).User choice and customization: Video platforms must offer users the choice between at least two different types ofsorting logics, such as alphabetical, chronological or view-based sorting. More generally, the algorithm must also becustomizable by the user (52(e)(2).Search features: Users must be able to access the video platform’s content through a search function, which must be“discrimination-free”. (52(e)(2))In addition to video platforms, the draft law also creates a new and relatively lighter regime for so-called ‘mediaintermediaries’ (Medienintermediär). Media intermediaries are services that “aggregate, select and make journalistic-editorial third party content publicly available without bundling that content into a service of its own” (Art. 13b). The lawprovides a number of rather wide-ranging examples, including search engines, social media services, app portals, usergenerated content portals, blogging portals and news aggregators. An interesting question is whether voice-assistednavigators like Apple’s Siri or Microsoft’s Cortana are covered by the definition.The main requirement for media intermediaries is non-discrimination. The phrasing is similar to the non-discrimination rulesfor video platforms, albeit more narrow: media intermediaries “may not unfairly disadvantage (directly or indirectly) or treatdifferently providers of journalistic editorial content to the extent that the intermediary has potentially a significant influenceon their visibility” (Art. 53(e)). Unlike video platforms, they have no duty to offer a choice of algorithms, customizationoptions, priority of public broadcasting, or search features. In sum, then, the draft law creates relatively detailed rules for“walled garden” video services such as Netflix (‘video platforms’), and a more light-touch regime for user-generated contentGermany proposes Europe's first diversity rules for social media platforms | LSE Media Policy Projecthttps://blogs.lse.ac.uk/mediapolicyproject/2019/05/29/germany-proposes-europes-first-diversity-rules-for-social-media-platforms/[2-9-2019 12:16:14]services such as YouTube or Facebook (‘media intermediaries’).Transparency obligationsThe draft law also imposes new transparency obligations on both video platforms and media intermediaries, in order toinform users, content providers, and regulators.For users, both video platforms and media intermediaries must disclose the selection criteria that determine the sorting andpresentation of content. (Art 52(f) & Art 53(d)). These disclosures must be made in easily recognisable, directly accessibleand constantly available formats. In addition, media platforms must also disclose the way these criteria are weighted, thefunctioning of the algorithm, and also disclose to content providers the conditions for access to the platform. Users must beinformed how they can adjust and personalize the sorting and explain the reasons that motivate content recommendations.This is a much more detailed, tailored approach to algorithmic transparency than in the GDPR, which uses open norms todemand an as-yet unspecified level of transparency, and may therefore have a strong added value. It would have had aneven stronger added value if the obligation to inform users about ways of adjusting the sorting criteria would have alsoextended to media intermediaries.For content providers, video platforms must also disclose, upon request, certain information to content providers (52(g)(3),including information about the sorting, presentation of content, conditions of access and use of metadata.For media regulators, both video platforms and media intermediaries must also disclose “necessary” documentation” uponrequest (53(f), 52(g)(1). These rules are undoubtedly a response to the growing frustration in government and civil societyabout the opacity of social media and their proprietary recommendation algorithms. If the vagueness of the phrase‘necessary documentation’ is a measure of the level of frustration, the frustration must run high. At the same time, thisvagueness could be the source of considerable legal uncertainty and will likely be contested in future litigation.DiscussionDiversity isn’t just about non-discriminationThe wording of Art. 53(e)(1) leaves no doubt that the non-discrimination rules for media intermediaries serve the goal ofpromoting and protecting diversity. This is remarkable, and makes the German draft law, to our knowledge, the first nationalregulation in Europe with explicit diversity obligations for social media and news aggregators. Non-discrimination, and thepreservation of the so-called “market place of ideas”, is arguably one aspect of media diversity. But media diversity is aboutso much more.The Council of Europe, for example, has defined media diversity (pluralism) in a recent recommendation as promoting “theavailability, findability and accessibility of the broadest possible diversity of media content as well as the representation ofthe whole diversity of society in the media” (Recommendation on Media Pluralism and Transparency).In this light, one may wonder whether equating diversity with non-discrimination is not too modest an approach, or evenGermany proposes Europe's first diversity rules for social media platforms | LSE Media Policy Projecthttps://blogs.lse.ac.uk/mediapolicyproject/2019/05/29/germany-proposes-europes-first-diversity-rules-for-social-media-platforms/[2-9-2019 12:16:14]counterproductive. In an environment of information overload and attention scarcity, realizing a diverse offering ofinformation may actually require one to give visibility to particular types of content – an act of editorial differentiation thatgoes beyond, or may even conflict with mere equal treatment. Ironically, from this perspective, a worst-case scenario is thatthe non-discrimination obligation could actually reduce diversity for media intermediaries, by restricting their ability to curatetheir rankings based on (discriminatory) editorial standards. Of course, platforms do not exercise editorial control in thesame way that traditional media do, nor would this necessarily be desirable. But to purport that Art. 53(e)(1)’s non-discrimination rule ensures diversity on platforms is to simplify the concept of ‘diversity’ beyond recognition.It is also clear that imposing diversity obligations on intermediaries is a complex endeavor, and fraught with fundamentalrights concerns; for a regulator to proscribe specific criteria for content ranking could quickly veer into unacceptable forms ofcensorship or propaganda. The recently adopted Council of Europe Declaration on the financial sustainability of qualityjournalism attempted to avoid this problem by outsourcing the development of such criteria (including credibility anddiversity) to media actors, civil society, and platforms:“In the exercise of their curatorial or editorial-like functions whereby they categorise, rank or display content, theydevelop, in collaboration with media actors, civil society and other relevant stakeholders, mechanisms andstandards for assessing credibility, relevance and diversity of news and other journalistic content. Content thatcomplies with such standards should be promoted over disinformation and other manipulative, malicious orblatantly false content, notably through improved distribution processes and clear information to the users on howto find and access credible news sources. (12(b)).An interesting question is whether the German non-discrimination obligation limits platforms’ ability to use these criteria toprioritize credible news over malicious content, as the Council of Europe desired. Similar conflicts could also emerge withthe European Commission’s Code of Practice on Disinformation, which demands the prioritization of ‘trustworthy’ content.This is not to say that the non-discrimination requirement is inconsequential. Platforms are increasingly rolling out their owncontent services (examples here and here and here), which creates a risk of unfair competition and concentration in contentmarkets. Some of these cases could already be addressed ex post through competition law (analogous to the famous‘Google Shopping’ case), but such claims involve a relatively high burden of proof — including the difficult question ofassessing market power. The Rundfunkkommission’s ex ante rules provides a more expansive and enforceable safeguard,which could help to tamp down on unfair competition in German markets for online media.An interesting follow-up question is how these provisions will relate to the country’s sector-specific competition law;Germany, unlike some other member states, still has rules on media concentration, and a specialized regulator, the KEK.Another relevant connection is the EU’s proposal for a Regulation on Platform-to-Business Trading Practices, which createsredress and transparency rules for platforms that give ‘differentiated treatment’ to affiliated products (here). The regulationexpands on the Rundfunkkommission’s transparency rules by requiring platforms to give reasons when they suspendoperators. However, it only requires platforms to be transparent about the criteria they use to differentiate, and does notactually prohibit discrimination. Should it pass and be applied to the media, the regulation (which strives for maximumharmonization) could clash with the more stringent German rules.Germany proposes Europe's first diversity rules for social media platforms | LSE Media Policy Projecthttps://blogs.lse.ac.uk/mediapolicyproject/2019/05/29/germany-proposes-europes-first-diversity-rules-for-social-media-platforms/[2-9-2019 12:16:14]Tweet ‹½X[oÚH~ï¯˜%Z©Uqbn)¦$”¸ÅNI~ã›ì1`Vûß÷ŒÁ\Ôn»mMay 29th, 2019 | Featured, Internet regulation, Truth, Trust & Technology Commission | 5 CommentsEnforcement: civil society need not apply?Only affected content providers are able to file a complaint with the responsible regulatory authority. This seems like amissed opportunity, since civil society actors could play a valuable role in policing platform algorithms. Academia and NGOsin particular have played in the past years an important role in drawing attention to, and scrutinizing the way social mediaplatforms and search engines exercise selection decisions, and the potential impact this can have on diversity and thehealth of the public sphere. The Rundfunkkommission could benefit from involving them in monitoring and enforcementprocesses. This would allow the public to not only be informed about platforms’ impact on the public sphere, but also a wayto act on what they have learnt.Concluding remarksThe German law is only the beginning of a new approach to platform regulation, not the final answer. For a law purporting topromote media diversity, the focus on non-discrimination leaves many questions open. Its most immediate effect may be tolimit self- and co-regulatory attempts to curate newsfeeds based on editorial standards, such as the Council of Europe andEuropean Commission’s demands to prioritize trusted news sources. Depending on one’s views, this can either be seen asobstruction of the fight against online disinformation, or as a safeguard against illiberal privatized gatekeeping.  In any case,the draft law already contains significant diversity rules for proprietary video platforms such as Netflix. More broadly, itsignals a much-needed departure from Europe’s light-touch ‘e-commerce’ approach to the regulation of platforms that act asimportant gateways to access to public information. Overall, the German draft law is an important national initiative towardsgreater transparency and societal responsibility for video platforms and media intermediaries, and can be expected to spurfurther discussion in Europe.This article represents the views of the authors, and not the position of the LSE Media Policy Project, nor of the LondonSchool of Economics and Political Science. Share this:Share 42 Share EmailRelatedHow social media companies aretackling anti-vaccinationmisinformationBad News – a psychological‘vaccine’ against fake news'Real news' may be doing moreharm than 'fake news'July 24, 2019In “Featured”August 22, 2019In “Featured”July 22, 2019In “Featured”

Germany proposes Europe's first diversity rules for social media platforms

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Germany proposes Europe's first diversity rules for social media platforms

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