State Media Treaty before ECJ: Controversial obligation to provide transparency

The controversial transparency requirements for large online platforms in the Interstate Media Treaty (MStV) have become a case for the European Court of Justice (ECJ). The Berlin Administrative Court has asked the judges in The Hague to clarify whether the German transparency rules for large online services contained in the MStV are compatible with EU legal requirements such as the Digital Services Act (DSA) and the E-Commerce Directive (case no. VG 32 K 222/24).

Users of online media intermediaries such as social networks, search engines or streaming services must be able to understand why certain content is displayed to them on results pages according to the legal transparency requirements. For example, the criteria that determine whether content is accessed by an online intermediary and whether it remains there must be disclosed. Operators must also provide information on aspects of the aggregation, selection and presentation of content and its weighting, including information on how the algorithms used work in easily understandable language.

In the case, the Medienanstalt Berlin-Brandenburg (mabb) called on the streaming service Spotify to improve its transparency information. The media watchdog complained that this was inadequate. The streaming provider is taking legal action against this. It is of the opinion that the German transparency obligations do not apply to it because they violate two important EU laws: the DSA and the E-Commerce Directive.

These questions need to be clarified

The Berlin court suspended the proceedings in a recently announced decision from July 10 and referred several questions to the ECJ: The 32nd Chamber wants to know, for example: Does the DSA already conclusively regulate the transparency obligations for online services? This would mean that national regulations could no longer be applied.

The Berlin judges also want to know whether national regulations such as the German transparency rules apply at all to media companies if they have their headquarters in another member state. The E-Commerce Directive could play a role here and restrict the applicability of such rules. There are no further appeals against this decision by the Administrative Court.

Three years ago, the state media authorities complained on the basis of a study that several large online platforms such as Google Search and YouTube were inadequately implementing the transparency provisions of the MStV. According to the study, relevant information on how search engines or video portals work was often difficult to find. The comprehensibility of the explanations was also lacking in some cases. The media watchdogs surveyed 3,000 representative users in Germany online.

(vbr)