Spotify versus the media authorities: Whose right counts?

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In the old media world, it seemed relatively clear that media were subject to regulation wherever they were published. Books, newspapers and magazines published in Bavaria, Berlin, Belgium and Sweden had to comply with the relevant local laws. In Germany, the media have always been the responsibility of the federal states, as the Basic Law stipulates. And media and culture are explicitly not fully harmonized across Europe. But in the digital world, the situation is extremely complicated. After all, what is a medium or a media distributor? And what is the place where the relevant regulation applies, the place of creation or the place of distribution? A legal dispute between the audio platform Spotify and the state media authorities could now provide a little more clarity in the confusion.

Spotify has turned to the Berlin Administrative Court to take action against obligations arising from the Interstate Media Treaty of the federal states: In the Interstate Treaty, the federal states have created specifications as to which obligations broadcasters, telemedia providers and platforms on which editorial-journalistic offerings are played out must fulfill.

Spotify, a media intermediary under German law?

As Spotify not only makes its own productions available for download, but also third-party podcasts, it is a "media intermediary" in the opinion of the state media authorities. Spotify would therefore have to comply with transparency obligations and non-discrimination obligations, among other things: The provider would have to explain the criteria according to which "aggregation, selection and presentation" take place – and also provide clear information on how the algorithms used in this process work. In addition, the anti-discrimination requirements would also restrict the company's ability to treat journalistic and editorial content as it sees fit, for example by deliberately displaying it less frequently on its platforms. This means that operators must ensure media diversity. Spotify thinks little of such requirements – and certainly not of the law that the German federal states have enacted in their constitutional responsibility for media.

The main argument put forward by the audio provider: As a Swedish provider, it is subject to Swedish law and the requirements of European law for information society services would preclude special German regulation. For providers within the EU, the country of origin principle – applies in contrast to the market place principle, i.e. the law of the country in which a service can be used. Even if this is no longer relevant, Article 27 of the Digital Services Act also contains a transparency requirement for recommendation systems such as algorithms and is therefore conclusively regulated. The fundamental rule is that European law takes precedence over the law of the Member States.

ECJ should bring clarity

The Berlin Administrative Court last week accepted the arguments of the audio platform operator, at least for the time being, and suspended the obligation by the state media authorities until further notice. The judges of the 32nd Chamber found the legal opinion of Spotify's lawyers anything but absurd and announced: Because the legal opinions on the important questions "are ambiguous in several respects, the recognizing chamber is unable to endorse any view on summary examination, but rather intends to refer the question of the meaning and scope of this Union law regulation to the ECJ." In other words, the judges at the European Court of Justice in Luxembourg will now clarify whether the federal states with their Interstate Media Treaty and thus the media authorities can be responsible for Spotify at all. The EU Commission had already raised concerns at an early stage that the Interstate Media Treaty was in conflict with EU law.

Process could still take years

And the judges do not see any need for haste either: As the media authorities had already taken two years to reach their decision to classify Spotify as a media intermediary, this could not be convincing – which is why Spotify, as an exception, does not have to implement the media authorities' order for the time being until a decision is reached on the merits. And that is likely to take some time: as soon as the judges in the main proceedings have submitted their questions on the interpretation of European law to the ECJ, the proceedings there would be suspended. If a ruling is then made in Luxembourg one day, a decision would then have to be made in Berlin in accordance with the interpretation – nothing is likely to happen quickly.

And so this dispute could be settled in a completely different way by then: The EU Commission will discuss in 2026 at the latest whether and, if so, how it intends to revise the Audiovisual Media Services Directive (AVMSD). If regulations comparable to German law are then enshrined in European law, Sweden would also have to implement them.

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