Public service broadcasting is subject to the legal mandate of ensuring diversity; but what about when algorithmic processes and software-based selections influence the delivery of content on online platforms? The project "Coding Public Value" is dedicated to the question of how the regulatory framework for such technologies can look.
In addition to the classic radio and television programmes, the public broadcasters also offer a lot of content online, for example in their media libraries. Regardless of their distribution channel, all these offerings must be oriented towards the legal mandate of public service broadcasting: to act as a medium and factor in the process of free individual and public opinion-forming through the production and dissemination of its offerings and thus to fulfil the democratic, social and cultural needs of society (§ 26 para. 1 sentence 1 MStV). The overriding constitutional objective is to stimulate the public communication process through diversity guarantees in such a way that it is always the breeding ground for the free individual and public opinion-forming that is needed for the overall democratic structure. The statutory programme mandate is thus strongly pre-structured by constitutional law.
Since 2009, in addition to the general broadcasting programme mandate, the legislature has provided for a further, online-specific mandate in the Interstate Broadcasting Treaty, which authorises and obliges broadcasters to also offer so-called telemedia content. In the current State Media Treaty, the legal framework further provides for this telemedia-related mandate (§ 30 MStV), which contains a number of specific content requirements (§ 30 paras. 3, 4 MStV).
The three-step test for telemedia offerings
However, the concrete design of such telemedia is not decided directly by the legislature, but by the respective broadcaster itself, taking into account the broad legal requirements. Before new or significantly changed telemedia offerings go online, a planned offering first undergoes a review procedure – the so-called three-step test (cf. § 32 par. 4 to 7 MStV). If this test is positive, the broadcaster is allowed to implement the new online service and can use the corresponding funds from the licence fee.
The assessment basis for the three-stage review procedure is a so-called “telemedia concept” (§ 32 MStV). In this concept, the broadcaster describes the characteristics of the service and explains how it will contribute to the legal public service mandate. The MStV makes concrete specifications as to which aspects the telemedia concept must take into account: With regard to the fulfilment of the programme mandate, it should contain statements on “the extent to which the new telemedia service […] meets the democratic, social and cultural needs of society”, “the extent to which the new telemedia service […] contributes qualitatively to journalistic competition” and “the financial expenditure required for the new telemedia service […]” (Section 32 (4) MStV). The further information that a telemedia concept must contain includes, in addition to the content orientation, information on the target group, the content, the orientation and the dwell time as well as information on the approach of excluding press-like offerings and on the “use of internet-specific design means”.
Internet-specific design tools and software-based ordering logics
The concept of these “internet-specific means of design” is exciting, because since 2019 there has been a requirement for telemedia concepts which is not further defined, but which may have the makings of a (small) paradigm shift in the concretisation of the public service programming mandate on the net. According to the legal justification, the new term is intended to express “that public service telemedia offerings can and should be dynamically adapted to technical developments on the internet. A variety of specific forms of presentation can be considered, such as multimedia presentation, support through search suggestions, links, live updates, animations, individualisations and personalisations, time-sovereign use of media content and other possibilities of video and audio use, audio description, subtitling or interactive elements.”
This list is remarkable because for the first time it does not only link to programme content and forms of presentation, but also addresses aspects of content aggregation, selection and prioritisation, e.g. recommendations or methods of individualisation and personalisation. In this way, the legislator refers to software-based logics of order of the offer. The first telemedia concept after the 22nd Interstate Broadcasting Treaty Amendment came into force was the “ZDF Telemedia Amendment Concept (2019-2020)” from August 2019, which had to implement the new legal requirement for the presentation of internet-specific design means as well. And this telemedia concept already shows what new perspective and innovative power the requirement can unfold: Thus, the ZDF telemedia concept speaks of any personalisation taking into account the “public service imperative of balanced thematic diversity from information, education, culture and entertainment” and confirms that on “the questions of algorithmic personalisation and recommendation […] the Television Council was informed” (17 f.). This complex is an “ongoing, constantly evolving process” (18).
Selection procedure and guarantee of diversity
For the broadcasters, the requirement to present the internet-specific design elements in telemedia concepts implies an obligation to concretise the multi-dimensional programme mandate for public service offerings with regard to software-based automation procedures and algorithmic selection decisions. This is not trivial, as the classic programme mandates were primarily intended as programme content requirements. However, the requirement offers the opportunity for the broadcasters as a whole – for their supervisory bodies and for the editorial teams and software developers in the houses – to think about and translate the extended order logic for software infrastructures and algorithmic selection procedures as well.
In one of its more recent broadcasting decisions, the Federal Constitutional Court also clearly emphasised that algorithmic procedures used in the context of online content mediation on media platforms have an influence on the communicative process (1 BvR 1675/16 (77 ff.)). Software-based selections can therefore be conducive to the goal of ensuring diversity – or oppose it, for example when using commercial selection logics. In this respect, the constitutional functional mandate is also reflected in the internet-specific means of design and thus obliges the broadcasters to orient the use of content-related selection logics in their online offerings towards the goal of ensuring diversity.
The “Coding Public Value” project
The bidt-funded project, in which the Leibniz Institute for Media Research | Hans Bredow Institute is involved with its legal expertise, identifies and analyses such legal requirements as well as societal and stakeholder expectations of public service software, for example in the area of search functions, recommendation systems and automatic content filters. Through interviews, document analyses and joint workshops, the research project, in close exchange with broadcasters and stakeholder groups, aims to identify options for the future concretisation and implementation of software-related “public value”, which could be taken up in future telemedia concepts if necessary. A first working paper will be published shortly, which will present an analysis of the regulatory framework for such technologies and make initial suggestions as to how they can be designed in the future, taking into account various requirements placed on public service broadcasting.
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