The Commission for Licensing and Supervision (ZAK), a body of the German media supervisory authority, recently classified certain in-car entertainment systems as user interfaces and, in one case, as media platforms. This is the first time that the media supervisory authority has exercised its supervision over media offerings from car manufacturers. What may seem surprising to a layperson at first glance is "groundbreaking" for the media supervisory authority.

According to the chairwoman of the ZAK, in-car entertainment systems are now "in the focus of media supervision" because these interfaces act as "gatekeepers" and decide which media offerings are available in the car. But what are user interfaces and media platforms and what obligations do they have? And what are the consequences of non-compliance? 

The legal background

Almost 3 ½ years ago, the new Interstate Media Treaty (MStV) came into force, replacing the previous Interstate Broadcasting Treaty. The special feature: The new Interstate Media Treaty has a much broader scope of application. It applies not only to television, radio and certain telemedia, but also to new gatekeepers such as media platforms and user interfaces – and for the latter also including those based abroad.

What is a user interface and a media platform?

A media platform in Section 2 (2) No. 14 MStV is defined as "any telemedium, insofar as it combines broadcasting, broadcasting-like telemedia or telemedia pursuant to Section 19 (1) [meaning "online press"] into an overall offering determined by the provider". The characteristic of the "overall offer determined by the provider" is intended to clarify that only those offers are covered where the provider itself decides conclusively on the selection offered. The distinction must be made based on the circumstances of the individual case, in particular regarding design, content, group of recipients and technical structure. The media platform is now independent of its distribution channel. This means that infrastructure-bound media platforms (eg, television cable networks, IPTV) are covered in the same way as media platforms in open networks (eg, OTT services), whereby the regulatory density is partly graduated and also dependent on threshold values.

The user interface, in turn, is a telemedium "that provides a textual, visual or acoustic overview of offers or content of one or more media platforms, which serves as orientation and directly enables the selection of offers, content or software-based applications that essentially serve the direct control of broadcasting, broadcasting-like telemedia or telemedia pursuant to Section 19 (1)" (Section 2 (2) No. 15 MStV). The user interface is therefore reflexively related to a media platform. It can be part of this media platform but can also be an independent telemedia offering. User interfaces of end devices (eg, smart TVs) are also covered if they provide program overviews or orientation via software-based applications.

In the opinion of the ZAK, modern in-car entertainment systems should now also be classified (at least) as user interfaces. However, whether an in-car entertainment system is to be classified as a user interface or even as a media platform, it must always be assessed on a case-by-case basis. Blanket classifications would not do justice to the differentiated and complex regulation of the Interstate Media Treaty. Rather, "details matter" and can swing the pendulum in one direction or the other.

Compliance requirements for qualification as a user interface or media platform

If an in-car entertainment system is classified as a user interface and/or a media platform, this has direct legal consequences for the provider. This is because the respective providers are subject to numerous obligations. This begins with commissioning, which must be notified to the competent state media authority at least one month in advance. Violations of this are subject to fines.

The design itself is also regulated by law and is subject to specific requirements, such as findability, transparency and non-discrimination, which the state media authorities have further regulated in the "Statutes on Media Platforms and User Interfaces". Providers with an average of less than 20,000 actual daily users in Germany benefit from a so-called de minimis regulation, which means that they are exempt from some regulatory obligations, although not from all of them.

Who is the provider?

This raises the question of who actually the provider of a user interface or media platform is and therefore who is subject to the obligations. According to the legal definition of the Interstate Media Treaty, a provider of a media platform is "anyone who is responsible for the selection of the offerings of a media platform". In turn, the provider of a user interface is "whoever makes the final decision on the design of the overview". This may be the car manufacturer, but it is not set in stone. In fact, differentiations are also necessary here, eg, regarding different applications and any third-party providers.

Does this also apply to providers based abroad?

According to the law, platform regulation already applies to media platforms or user interfaces "insofar as they are intended for use in Germany". Applicability is therefore based on the so-called market location principle. In other words, this can also apply to companies based abroad.

However, this legal regulation is controversial regarding the country-of-origin principle enshrined in European law. The EU Commission already assumed a violation of the country-of-origin principle of the E-Commerce Directive during the legislative process, which it confirmed in the course of the notification procedure for the "Statutes on the Regulation of Media Intermediaries pursuant to Section 96 of the Interstate Media Treaty".

What are the consequences of non-compliance?

The supervisory authority is entitled to take measures to enforce violations of the law. For example, it can issue complaints, but also prohibitions, see Section 109 MStV. In addition, the supervisory authority can also impose severe fines of up to EUR500,000 for violations of numerous provisions of platform regulation, such as the failure to notify or late notification of the operation of a user interface or media platform, see Section 115 MStV.

The competent supervisory authority is usually the respective state media authority where the provider concerned is based, see Section 106 (1) MStV.

Outlook

The convergence of the media continues to progress and with it the regulatory access of the competent supervisory authority. However, the classification of the respective services and thus the distinction between the regulated and non-regulated area is, as always, a question of the specific individual case. Blanket classifications are therefore out of the question. Many legal questions are also still open or have not yet been clarified by the courts, let alone conclusively. Nevertheless, the automotive industry must address the issue of in-car entertainment and media and platform regulation; the state media authorities are already doing so by now.