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State media authority against health-related Google knowledge panels

Are cooperation between health authorities and internet intermediaries illegal?

A guest contribution by Martin Fertmann, Prof. Dr. Wolfgang Schulz and Dr. Stephan Dreyer

In the pre-Christmas canon of increasing numbers of corona cases, stricter infection protection measures and growing concerns about the spread of corona-related disinformation, the announcement by the Medienanstalt Hamburg-Schleswig Holstein (MAHSH) that they are bringing proceedings against Google because of a cooperation with the Federal Ministry of Health ( BMG). Initially, the Federal Association of Digital Publishers and Newspaper Publishers (BDZV) had already publicly criticized this cooperation as breaking a regulatory taboo.

This measure also marks the first case against media intermediaries on the basis of the new State Media Treaty (MStV) that came into force in November. In addition to the question of how this decision affects the cooperation of large internet companies and authorities for the dissemination of trustworthy Corona information, the procedure throws a first spotlight on the media intermediary regulation of the new MStV in general, which still contains some ambiguities.

Cooperation between Google and the Federal Ministry of Health: MA HSH initiates media law proceedings: https://t.co/9rcLJ7WH22pic.twitter.com/CYqO7ppBkL

- MA HSH (@MA_HSH) December 17, 2020

In a press release dated December 17, 2020, MAHSH announced that it had initiated proceedings against Google due to its cooperation with the BMG in accordance with Section 94 MStV. As part of this collaboration, since November 10, 2020, Google has been displaying so-called knowledge panels on the right-hand side of the screen for users of the Google search if they enter one of 160 search terms with a health reference, which refer to the content of the websiteheil.bund. de refer. According to its own information, this site is operated by a private company on behalf of the BMG, with a department from the ministry acting as the "publisher". In addition to keywords on other common diseases, such knowledge panels are also displayed - in addition to further amplified information from authorities - (as of December 19, 2020) for the search terms “corona”, “covid”, “covid-19” or “sars cov 2”, whereby Unlike those for other common diseases, these are not highlighted in color and do not offer an integrated navigation option (“overview”, “symptoms” “treatment”).

 

 

The dissemination of false digital information, which can have serious consequences, especially when it comes to health issues and not just during a pandemic, has so far hardly been effectively restricted with legal bans. Pragmatic approaches therefore focus strongly on encouraging intermediaries to promote the dissemination of reliable information and / or to slow down the dissemination of actual or supposed disinformation. During the pandemic in particular, new forms of cooperation have emerged among (between) state actors such as the BMG or the WHO and private internet intermediaries: In addition to Google, other intermediaries such as Facebook, Instagram, TikTok and soon Twitter also refer their users in different forms, but always highlighted, to official information from the BMG or the World Health Organization (WHO).

Against this background, the MAHSH procedure that has now been started can create legal uncertainty for such practices even beyond the pandemic and discourage media intermediaries from the voluntary amplification of trustworthy (and thus possibly also state) information.

The MStV, which came into force on November 7, 2020, provides for a ban on discrimination for media intermediaries in Section 94 (1). According to this, media intermediaries may "[z] to ensure the diversity of opinion (...) journalistic-editorial designed offers, on the perceptibility of which they have a particularly high influence, do not discriminate". A media intermediary is according to § 2 Abs. 2 Nr. 16 MStV "any telemedia that also aggregates, selects and presents journalistic-editorial offers from third parties, without combining them into an overall offer“, The justification of the MStV (p. 13) as examples for media intermediaries "Search engines, social networks, user-generated content portals, blogging portals and news aggregators" is called. If these offers meet further requirements according to § 91 Abs. 2 MStV, in particular reach at least one million users per month in Germany for an average of six months (No. 1), the prohibition of discrimination in § 94 MStV applies.

According to Paragraph 1, this only includes offers that are journalistic-editorial and whose perceptibility media intermediaries "particularly high influence" to have. When this is the case, it is not clear either from the MStV itself or from its justification (p. 51). The reasoning essentially only paraphrases the norm and refers to the fact that “antitrust standards, such as a dominant position, are a decisive indicator” and the - in part contradicting - “thresholds of media concentration law” could provide an orientation.

This raises at least three questions that are central to the application of the anti-discrimination rules of the MStV:

  1. Which journalistic and editorial offers does the legislature mean as a reference group? All? Only the types at issue, in the case of Google / BMG for example (journalistic-editorial designed) health portals? Or is it about all journalistic and editorial offers?
  2. When it comes to the impact graduation, what is the population that the materiality threshold refers to? Does it depend on the influence on every, i.e. also offline, perception of the content, insofar as it is available offline? Or just about exercising online? And if only online, then as a whole or only to the extent that the content is conveyed by a media intermediary (and then by every media intermediary and only those of the same type?). The more narrowly this is summarized, the more likely it is that cases are recorded in which the influence on opinion formation can be marginal, but the position of the intermediary in its market segment appears strong. This question also reveals weaknesses in the data situation when it comes to determining the shares of an intermediary in the conveyed perception.
  3. How exactly should the position be determined if one takes into account that the "market share" indicator, particularly in the case of internet-based platforms with free pages, is given no or at best very limited informative value in the antitrust discussion (p. 76)? In short: the requirement of a "particularly high influence“A media intermediary raises a number of questions that are reserved for in-depth investigation.

According to § 94 Abs. 2 MStV an impermissible discrimination presupposes that either "Systematically deviates from the criteria to be published in accordance with Section 93 Paragraphs 1 to 3 in favor of or at the expense of a particular offer without an objectively justified reason"(1st alt) or that"these criteria systematically and directly or indirectly inappropriately hinder offers“(2nd alt). In accordance with Section 93 (3) sentence 1 of the MStV, a breach of these requirements can only be asserted by the provider of journalistic and editorial content concerned with the responsible state media authority. Such a complaint was not received here; according to the press release, MAHSH initiated the procedure ex officio. This is according to the exception of § 93 Abs. 3 S. 2 MStV "[i] n obvious cases“Possible.

The "Google search" itself is relatively clearly a media intermediary according to § 2 Paragraph 2 No. 16 MStV and also reaches the limit of one million monthly users (§ 91 Paragraph 2 No. 1 MStV). However, whether the knowledge panels, which are displayed next to the search results and do not cover them, are themselves part of the search service can be discussed. The panels and their underlying algorithms could possibly represent a (media) intermediary of their own. Then these would have to meet the requirements for aggregation and in particular selection in accordance with Section 2 (2) No. 16 of the MStV. This classification as a media intermediary could also fail because the definition presupposes an offer that "also" third-party journalistic-editorial content aggregated. So both journalistic-editorial and other content have to be brought together, which seems doubtful for the knowledge panel.

Assuming the necessary “particularly high influence”, the question arises as to which of the alternatives in Section 94 (2) MStV is relevant here. The press release leaves open which of the alternatives in Section 94 (2) MStV the MAHSH considers violated. Section 94 (2) of the MStV contains two “real” alternatives, ie mutually exclusive constellations: If it is a question of the design of the criteria to be published, this must be measured against Section 94 (2) alternative 2. If these criteria are deviated from, § 94 Paragraph 2 Alt. 1. Whether these criteria through Google have already been published in full at the moment is irrelevant here, it expressly only depends on whether they are in accordance with the law to be published Criteria are applied or deviated from. The relevant criteria include in particular the conditions for access and retention of content to or with a media intermediary (Section 93 (1) No. 1 MStV) and the central Criteria for an aggregation, selection and presentation of content and their weighting including information about the functionality of the algorithms used (Section 93 (1) No. 2 MStV). Here again the question arises whether it concerns the general search criteria or those that control the display of info boxes in the panel.

For the media intermediary "Google search" (see above), which is assumed to be authoritative here, a quasi-editorial, topic-specific display of the knowledge panels for a three-digit number of search terms does not change the criteria for access or the whereabouts of content (Section 93 (1) No. 1 MStV) or the central Criteria for the compilation of the Google search as a whole (§ 93 Abs. 1 Nr. 2 MStV). According to § 94 Abs. 2 1. Alt MStV it is therefore a deviation from the to be published Criteria in favor of the healthy.bund.de offer - provided that the overlays are understood as part of the general search service (see above).

In order to assess the unequal treatment and its justification, it is also important to identify the other comparable offers. This also raises questions, especially about the competitors who are entitled to complain. From the user's point of view, other non-media content comes into consideration here, for example from scientific institutions or associations. In the area of ​​journalistic and editorial content, it is more likely to be information pages than daily reporting that satisfies the same interest in information.

When does this unequal treatment appear as "systematic"? There was much controversy over these qualifications in the legal text in the last phase of the negotiations. The deviation from the native search in this case alone cannot be sufficient for the classification as “following a system”, because this is already the prerequisite for a relevant deviation at all. In this respect, the discrimination must be based on an overarching concept.

In addition, the question arises whether the deviation "without an objectively justified reason" he follows. As such, the dissemination of information that appears to be particularly trustworthy in the public interest in an area particularly endangered by incorrect information comes into consideration. It cannot be ignored here either that the legality of the BMG offer itself could be unlawful due to the possible violation of the principle of absence from the state. In any case, the offer would only fall within the scope of the MStV if it was designed in a journalistic and editorial manner, but then the offer would probably be presented as an illegal state media offer. However, the final assessment of this complex sub-question of the illegality of the offered offers can probably not be made be burdened on the media intermediaries, so that it does not matter for the examination of a violation of the MStV.

In order to intervene ex officio, the violation must be "obvious" in accordance with Section 94 (3) sentence 2 of the MStV. The MStV explanation (p. 53) explains: "The criterion of “obviousness” is taken from administrative law (cf. Section 44 of the VwVfG). This restricted official investigation is intended to ensure that there is no continuous, application-independent review of compliance with the prohibition of discriminationt. "The requirements of § 44 VwVfG are very high - the error must be" written on the forehead "of the (there: administrative) act (Schemmer BeckOK VwVfG, § 44 marginal number 14-17.1); "which to a proper administration [or. here search result display]The requirements to be set would have to be violated to such an extent that nobody can be expected to[the action] to acknowledge"(BVerwG, decision of May 11, 2000 - 11 B 26.00). In view of the circumstances described here, however, the knowledge panels are far removed from such an obvious violation.

While the state media authorities are currently still working on the draft of a statute for the regulation of media intermediaries in order to interpret and specify the many indefinite legal terms as well as the decision-making criteria and standards, the MAHSH procedure that has begun must now anticipate many of these considerations. In doing so, the limits will become clear that the world's first regulatory framework for the diversity-related regulation of media intermediaries is facing. Areas of application, regulatory logic and the interlinking of diversity regulation with antitrust considerations will reveal a whole series of new problems that the state media authorities - and also the state legislators - will have to face in the coming years. The fact that additional health information is displayed during a pandemic in the first intermediary proceedings according to the MStV is likely to put an additional burden on the still new set of rules. The fundamental criticism expressed about the ban on discrimination that diversity in the mediation of media offers on the Internet cannot be regulated in isolation - i.e. separately from the users' interest in other information - is already confirmed by this first case.

Parallel to these, in the truest sense of the word, exciting developments in Germany, a look at Europe seems interesting, where the recently submitted Art. 37 of the Draft for a Digital Services Act (DSA-E) shows that things can also be different. According to this, against the background of the pandemic in public emergencies, for example in the health sector, platforms are to be induced to establish crisis protocols for the preferential treatment of information from the member states or the EU while observing transparency requirements (Art. 37 para. 2 a) DSA-E) . That sounds like the obligation to broadcast official announcements, as we have known them for many years in the field of classic broadcasting. Whether the BMG portal is an official announcement, or rather an inadmissible information offer due to the lack of a state remote from the state, remains questionable and may require a further blog post.

Martin Fertmann is Junior Researcher and Stephan Dreyer is Senior Researcher at the Leibniz Institute for Media Research (Hans Bredow Institute). Prof. Dr. Wolfgang Schulz is the director of the institute.