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Media and Advertising Law

Media serve to distribute and make accessible information, opinions or advertising as well as to convey copyrighted content and thus our cultural work). Media law regulates the handling of publications of all kinds (and press law in particular link) and applies equally to analog and digital media.

As information and advertising media, as a means of entertainment or as a marketing channel, media can be subject to a multitude of regulatory requirements and regulatory supervision. Regulatory provisions aim at guaranteeing the diversity of opinion and freedom of access, but also at the protection of minors. Moreover, media providers have to comply with antitrust requirements or to refrain from illegal advertising. Besides, a network of private-law relationships must be legally differentiated and managed. In addition to copyright and general civil law aspects, the responsibility of intermediaries and distributors of content and fair competition aspects of advertising must be taken into account.

Due to digitization, media law is also subject to far-reaching changes in the media landscape, which leads to ongoing adjustments by the legislator. With the Mediendienstestaatsvertrag (Interstate Media Treaty, MStV), a number of new legal obligations, particularly in the digital sector, are being imposed on companies.

Adjustments of media law through digitization

National borders no longer play a role in the supply of digital media, at least not in technical terms, and the boundaries between individual media are also becoming blurred (as is the case with Internet television or electronic books, so-called eBooks). Content can be accessed from anywhere and networked with one another. New forms of media, such as user-generated content or streaming services, are on an equal footing with traditional offerings or even threaten to displace them. This leads to a profound change in the economic basis of the media industry, but also to a legal redefinition and handling of media services and addressees of regulatory interventions. Therefore, legal aspects and advice can be manifold:

Licensing, advertising law and other regulation of broadcasting and telemedia

"Broadcasting companies" require a corresponding media law license for the organization of radio programs (television or radio), regardless of whether the programs are distributed via antenna, cable, satellite or Internet. In the case of streaming services, the linear, i.e. simultaneous, broadcasting of moving image services, their journalistic/editorial design and distribution within the framework of a broadcasting schedule are considered decisive for a license.

In addition, the providers of media platforms play a key role in the distribution of content. They are subject to control by the responsible state media authority with regard to access conditions and the findability of media offerings. The relevant provisions are contained in broadcasting laws of the federal states as well as in the Rundfunkstaatsvertrag (Interstate Broadcasting Treaty, RStV) which will be replaced by the MStV and which is intended to adapt the broadcasting regulations to the requirements of digitization and media convergence and to implement the provisions of Directive 2010/13/EU on audiovisual media services (AVMSD Directive). The MStV - which is expected to be ratified by the state parliaments by the end of 2020: new media forms and services (such as video sharing services) and new types of providers (such as media intermediaries who prepare third-party publications and make them available to the general public, or providers of user interfaces) will be subject to regulation. State media authorities will be empowered with extended competences. They will also have regulatory competences with regard to advertising, sponsorship and product placement. With MStV, the regulations on the protection of minors in the media (in the Interstate Treaty on the Protection of Minors in the Media) are also revised.

MStV also introduces a number of new legal obligations for companies such as providers of apps, social media, language assistants or smart TVs, who have to adapt their products and services, e.g. integrate transparency information into their offering. The MStV also includes new provisions for established media providers in terms of the granting of broadcasting licences or advertising.

Regulation of social media

Social media platforms offer a high real-time factor, generate global attention and enormous reach. Companies and public institutions therefore use them in a variety of ways: for their public relations work, for customer loyalty, for advertising campaigns, for sales support, as a way of recruiting staff or for their reputation management. Special attention is currently paid to influencer marketing, in which opinion leaders (e.g. well-known YouTuber, Blogger, Instagram and Snapchat users, celebrities, etc.) with a wide-reaching community are used for marketing and communication purposes in order to increase the value and credibility of their own brand in the respective target group.

In order to use these communication channels in a strategically targeted and profitable way, companies have to consider a number of legal parameters that determine whether, how and ultimately the success of the use of social media. Not only the MStV subjects providers of social media to regulatory requirements. Reporting obligations and procedural duties in dealing with illegal content also result, for example, from the law to improve law enforcement in social networks (Netzwerkdurchsetzungsgesetz, Network Enforcement Act - NetzDG) and, in future, also from the amended Telemediengesetz (TMG) and Jugendschutzgesetz (JuSchG).

Regulation of media infrastructure - electronic communication networks

Electronic communication networks are the backbone of all communication. They make the transport of data and content possible. The European Electronic Communications Code (Directive (EU) 2018/1972) and the German Telecommunications Act (Telekommunikationsgesetz, TKG), for example, provide a large number of procedural and regulatory requirements for infrastructure providers. These requirements are intended above all to promote the expansion and use of broadband networks, sustainable competition, the interoperability of communications services, their accessibility and security, and the interests of consumers. In the area of network and classical platform regulation, telecommunications and broadcasting or media regulation are often linked with each other. In addition, questions of data protection, data security (link data (protection) right) or the protection of consumers or privacy are relevant, because not only connectivity and high performance standards, but above all the security of services are critical to the success of many business models.

Responsibility of internet service providers and platform operators

The Directive on Electronic Commerce (eCommerce Directive, 2000/31/EC) has established a general liability regime for intermediaries of third-party information, which defines liability privileges for access, caching and host providers and excludes pro-active monitoring obligations. In the meantime, this regime has been concretized and tightened by national and European jurisdiction and legislation in a number of areas when dealing with illegal content (especially in the case of copyright infringements of access and host providers (link copyright/responsibility).

In addition, further requirements for providers of social networks (e.g. NetzDG), media intermediaries (such as search engine providers, video sharing platforms), media platform operators (such as telecommunications companies or cable network operators) or providers of user interfaces (in the MStV) are in the regulatory focus.

We support you in all media law matters. Our precise and individual legal advice is based on many years of expertise in media and media business law and on a profound knowledge of the economic interrelationships in the media industry. For many years we have been advising access and host providers, other platform operators or rights holders on liability issues. We also provide expert opinions and position papers on regulatory and liability issues.

Our support includes the acquisition of broadcasting licenses. We provide comprehensive advice on your rights and obligations under the RStV or the MStV and represent your interests vis-à-vis the competent regulatory media authorities.

We also advise you or provide expert opinions on the legal implications of modern forms of advertising such as influencer marketing, targeted advertising or addressable TV. Especially the digital marketing of content and advertising may require a clear positioning vis-à-vis media regulators, competitors or consumer protection organizations, which we take on for you. In addition, we enforce your rights vis-à-vis regulatory authorities and competitors in and out of court.

We also equip your company for a legally compliant presence on the Internet or social media and advise you on the legality of the content, form and scope of your media presence. In this context, we also enforce existing claims in and out of court or defend against claims raised against you.

Our clients are classic media companies, companies in the film licensing business, radio and telemedia service providers, well-known advertising marketers as well as companies in the ITC industry (software manufacturers, telecommunications companies, cable network operators, internationally operating platform operators). In addition, we also advise large and medium-sized companies that do not come from the classic media or ITC sector, but which, due to their marketing activities (e.g. influencer marketing, social media, sponsoring and large advertising campaigns), have a need for advice on media and advertising law, in particular on questions of advertising law and advertising models.

  • Telemedia Law
  • Broadcasting Law
  • Broadcasting and media laws of the Federal States
  • Telecommunications Law
  • European Electronic Communications Code (Directive (EU) 2018/1972)
  • Youth Protection Law
  • Network Enforcement Act
  • Competition Law
  • European and constitutional Law
  • Administrative and administrative procedural Law
  • Law against Unfair Competition