Reform of Media Regulations in Germany: eco Against Stronger Regulation of Search Engines

The progressive convergence of media in the context of digitalization – in other words, the convergence and merging of the different media and media usage – demands a fundamental reform of the current media and communication regulations. A joint commission of the German Federal Government and the German states on the reform of German media regulations is currently drafting the necessary changes for various fields of law. In this context, the question has also come up as to whether so-called intermediaries such as search engines should be subject to stricter state controls due to their gatekeeper function. In particular, there are calls for the central supervision and review of the search algorithms used. eco – Association of the Internet Industry is decidedly against further regulation of intermediaries.

As Oliver Süme, eco Director of Policy and Law, points out, “This debate about the alleged discrimination of Internet content by intermediaries, and the associated call for more regulation as well as adjustments in the context of competition and cartel legislation, is just hot air,” as, so far, there is no proof for the actual existence of the much-proclaimed dangers of individual intermediaries having too much market and media influence. “We don’t need any further laws in order to manage such alleged market risks,” Süme states. The existing legal instruments can deal with all issues related to competition in digital markets. Too much regulation, such as the introduction of a central supervisory body to monitor the search algorithms used by search engines, could even prevent innovation and investment in infrastructure and novel online services. Süme continues, “with media convergence in mind, even the term intermediary is problematic. There is no common understanding nor exact definition of what an intermediary is.”

5 points against regulating intermediaries:

1. The term intermediary is not clearly defined. Intermediaries can be found in many different shapes, models and business fields. At the same time, new types of intermediaries are constantly emerging. Therefore, there is no unambiguous legal definition of the media genre ‘intermediary’ and, as a result, no clear scope of action for regulatory measures.

2. Inadmissible discrimination is almost impossible to prove: The whole purpose of intermediaries is to provide users with the best possible answer to their search query. To do so, content is not selected in an editorial fashion, rather the results always represent an answer to an individual search query. This list of results cannot be neutral per se. Finding a valid distinction between admissible and necessary differentiation and probably illegal discrimination is not a trivial thing in practice.

3. The agreement on and concretization of central criteria of the search algorithm by a central body is unrealistic and impractical. The operator of an intermediary is dependent on being able to constantly adapt the search algorithm to new demands and to continue to improve it. The establishment of a regulatory structure to check and approve every tiny change in an intermediary’s search algorithm is hard to imagine. Regulatory interference in this area can only be on an ultima ratio basis and should require proven cases of abuse.

4. Making the disclosure of central search engine criteria compulsory is detrimental to business. This would make the necessary constant improvements of the search algorithm significantly more difficult and would represent a strong encroachment into entrepreneurial freedom. The full disclosure of the search algorithm would significantly impair the usability of an intermediary, as it would allow for a range of possibilities for manipulation.

5. Entrepreneurial self-regulation works. Many intermediaries have already voluntarily committed to self-regulation and this should be given priority. A supervisory body or court should only intervene when necessary in a further step.