Aleksandra J. Polińska-Nestmann, Hermann-Dieter Schröder, Barbara Thomass
Germany is the biggest country in Europe with 83 million people and part of a bigger German-speaking media market of about 100 million people. The country has a long tradition of mass media and is one of the most dynamic media markets in the world. This is reflected in the consumption patterns of media users, who have an average media use of 11’18 hours per day (VAUNET, 2022). Politically, Germany is considered a mature liberal democracy.
The media landscape is characterised by a long and deeply rooted tradition of the press. Despite a changing landscape due to other competitive players in the advertising market, such as broadcasting and digital media, the periodical press today still plays a major role. High levels of press circulation are ensured by regional and local subscription papers, which are complemented by nation-wide quality newspapers and two influential weeklies. The broadcasting sector is characterised by a dual system of public-service media (PSM) and commercial broadcasters. The Federal Constitution stipulates that the sole responsibility for broadcasting rests within the states of the Federal Republic as part of their “cultural sovereignty.” Because of this, the federal system is reflected in the decentralised broadcasting system, with eleven PSM networks in the Länder (federal states) broadcasting with a nationwide range.
Commercial radio and television comprise a large number of well-established commercial television and radio stations which are mainly consumed by younger audiences. The German media users seem to rather prefer traditional linear media (press, radio, and television) over internet-based media. However, the growth rates of internet usage are enormous, specifically among the youth. The producers of quality journalism in the press, however, have difficulties in benefiting from this development.
The state’s regulatory role in shaping the face of Germany’s media sector is most dominant in the broadcasting sector, less in the print sector and growing in the digital sector.
Regarding the relationships between outlets and their owners as well as the media concentration in Germany, the level of transparency is high.
The concentration of mass media has long been a much-discussed topic in Germany. Every three years, the Commission on Concentration in the Media (KEK) presents a report outlining the development of concentration and measures to ensure diversity of opinion in private broadcasting. The latest report, published in March 2022, describes developments in the media markets and provides insights into existing corporate structures. In addition to the television market, it also includes developments in the area of media-relevant related markets. This applies in particular to the areas of radio, print, and online as well as the rights and advertising market. The KEK also provides free access to an online database containing information about ownership structures of more than 7000 enterprises with activities in the TV, radio, print and online sectors.
Due to decline in readership and advertising revenues, print media are under pressure. Local newspapers are often the only ones reporting about their county. In 2021, the 10 largest newspaper groups accounted for 50.8% of the newspaper circulation, and among the magazine publishers the 5 largest groups accounted for 83.1% of the circulation (Die Medienanstalten, 2022a: p. 124, 137).
Radio is oriented toward regional channels and still dominated by the public broadcasters with more than 50% audience share. With the introduction of DAB+, the number of channels that can be received locally has increased strongly, including new nationwide channels. Additionally, there are about 1200 web radio channels, nearly half of which are simulcast channels that can be received—locally or regionally—as traditional radio channels (Ibid.: p. 102-106).
With an audience share of 50.9% in 2021, the public broadcasters also have a very strong position in the TV market, followed by RTL Group (21.1%) and ProSiebenSat.1 Media (16.2%) (KEK, 2022). Competition by streaming services such as Netflix is growing, which, according to KEK, is accelerating the concentration of the TV and video market (Die Medienanstalten, 2022a: p. 101).
The online media market is difficult to define. On the one hand, there are extensions of traditional print media and broadcasters, on the other, there is new online content that is of increasing relevance for information and formation of opinions. Of the 25 most used online media in Germany, 18 are extensions of print media or broadcasters (Ibid.: p. 143).
The media authorities have developed a method to estimate the importance of media offerings and the publishers for the formation of opinions. It rests on the market shares of print, radio, TV and online offerings and on surveys about the importance of the media channels for the opinion formation from the audience perspective (Die Medienanstalten, 2021; 2022b). The media offerings are also related to the media corporations they belong to. The results are shares of the media corporations at the market of opinions. Bertelsmann has the leading position with its activities in TV, online, radio, and print media (10.4%). The next are Burda, present in online, magazines, and radio (8.3%) and the regional public radio and TV broadcasters, collectively known as the ARD (8.2%). The fourth position belongs to United Internet, engaged in online media (7.1%), the fifth is Axel Springer, the publisher of the tabloid Bild with the highest newspaper circulation in the country, also engaged in other newspapers, in TV, radio and online media (6.5%). Taken together, these top five media corporations have a weight in opinion formation of 40.5%.
Important to note is the influence of one financial investor in the news sector. The financial investor KKR has become the largest shareholder in the Berlin-based media group Axel Springer, and even outstripped the publisher’s widow Friede Springer. With their takeover offer, the American company secured 35.6% of Europe’s largest digital publishing house. KKR is also involved in the TV channel RTL Zwei with 13.28%. In the ranking of the opinion market, KKR is therefore ranked next to Axel Springer with a market share of 6.1%.
Accounting for technical as well as economic dimensions, the risks for media ownership transparency regarding distribution channels in Germany are considered low.
The country’s distribution infrastructure of print media is characterised by availability and high population reach. Important for print media in general, and daily newspapers in particular, are special postal services offered by Deutsche Post such as next- or even same-day delivery. Germany’s print media infrastructure also has no record of discrimination against and/or preference for certain outlets over others, which has been solidified by a number of legal provisions. This includes a 1969 ruling by Germany’s Federal Constitutional Court (Bundesverfassungsgericht) which determined that a boycott call against competitors cannot invoke freedom of expression. Moreover, with its freedom guaranteed by the constitution, the press must also be protected from any attempt to eliminate the competition of opinions through economic pressure (Bundesverfassungsgericht, 1969). Furthermore, as recently as 2020, the Federal Cartel Office (Bundeskartellamt) objected and subsequently brought an end to a rule of the wholesale press that required publishers to pay a surcharge for the distribution of magazines if they did not reach a minimum turnover (Bundeskartellam, 2020).
Germany’s distribution infrastructure of audio broadcasting is likewise characterised by high diversity in a situation of competition, which reduces the risks of bottlenecks and control over content by single distributors. The audience can choose from a wide range of channels via terrestrial transmission (FM and DAB+) as well as cable and satellite. AM transmission has practically disappeared since 2015 because of low use and high costs (heise online, 2015). With regard to broadcasters, there are a few different providers of FM, cable, and satellite, although one dominant provider for satellite (Astra) has emerged. As for cable transmission, competition among two or three providers exists in some places.
Television broadcasting’s distribution infrastructure in Germany similarly offers high diversity in a situation of competition, with a choice between terrestrial DVB-T, satellite DTH, and IPTV existing almost everywhere. Cable TV is available in most of the country, with a few providers sometimes competing in the same area. Moreover, in March 2022, public and commercial broadcasters jointly published a paper declaring commitment to the continuation of the terrestrial transmission beyond 2030, due to the competing demand by mobile network providers (Allianz für Rundfunk- und Kulturfrequenzen, 2022).
The country’s distribution infrastructure of the Internet enjoys high connectivity in a situation of competition. As the Telecommunications Modernization Act (Telekommunikationsmodernisierungsgesetz) came into force in 2021, residents of Germany gained an individual legal right to be supplied with telecommunications services. With the passing of the act, Germany transposed into national law the Directive (EU) 2018/1972 of the European Parliament and European Council on the European Electronic Communications Code from the 11th of December 2018 which similarly deals with universal service in telecommunications. The Federal Government has recently issued an ordinance determining what constitutes the minimum supply. According to the Digital Economy and Society Index (DESI) data, Germany is on rank 6—above EU average—with multiple Internet services providers of different owners.
Regarding cross-ownership on the level of distribution and production, no outlet has relevant ownership relation to (that is, is owned by) a distribution channel/company involved in media production. Traditionally, regional public broadcasters have owned terrestrial transmission infrastructure for their channels, while the operators of other distribution channels for terrestrial, cable or satellite broadcasting have not produced their own content. (Deutsche Telekom sold its online portal T-Online to Ströer — a company specializing in poster advertising — in 2015.)
In the context of net neutrality infringements, a record of multiple (more than five) cases exists. Between 2020 and 2021, the Federal Network Agency (Bundesnetzagentur) observed that in a number of instances it investigated, “providers of internet access services voluntarily ceased infringements of the net neutrality provisions whereas in others no infringement was detected” (Bundesnetzagentur, 2021). At the same time, however, the Agency also pointed out the existence of a number of procedures and developments concerning net neutrality infringements that it was looking into. Consequently, in April 2022, the Agency announced that it had “prohibited the marketing of the zero-ratings options ‘StreamOn’ (Telekom) and ‘Vodafone Pass’ (Vodafone) and ordered the termination of existing customer contracts” (Bundesnetzagentur, 2022). As the Agency explained, the zero-ratings offerings “violate[d] net neutrality provisions, as they [did] not treat data traffic equally” (Ibid.).
When it comes to the news consumption practices, non-linear news use — that is, accessing news online via digital information intermediaries such as social media, news and content aggregators, search engines, video-on-demand platforms, and instant messaging applications — poses increased risk to transparency of who makes decisions over news provision. Residents of Germany are no strangers to this form of news consumption, with 31% declaring accessing news on social media last week (Hölig, Hasebrink, and Behre, 2021). However, despite the popularity of digital information intermediaries as a source of news, it is linear program television (69%) and radio (40%) that are the two most widespread access channels used in Germany to find out about current events (Ibid.). In fact, traditional media (television and radio broadcasting as well as print) with 78% are markedly ahead of the Internet (overall) with 69% as the source of news residents of Germany used last week (Ibid.). What remains to be seen is how generational differences will impact the linear/non-linear distinction in news consumption, with those aged 14-29 visibly shifting to non-linear video and audio use and away from linear television and radio (Die Medienanstalten, 2022a). Given that, the transparency-relevant issues such as content curation by digital intermediaries warrants further attention. Currently, half or more of digital intermediaries relied on by German population disclose criteria for content prioritisation either one click away of or in the content area itself and, likewise, half or more of them either reject influence of specific commercial arrangements or promise to label/tag any content influenced by such arrangements.
While the overall risks for media ownership transparency with regard to distribution channels in Germany are low, the issue of potential concern could be the fact that non-linear video use remains practically not covered by the country’s media concentration law (Ibid.). Although currently not the most used access point for news among residents of Germany as mentioned above, the significance of non-linear video use is likely to be propelled by younger generations socialized in an all-round digitalized (media) world.
The risks to transparency in the legal dimension of media supply are low, as the provisions for the functioning of the media are clearly set.
Article 5 (1) of the German Basic Law regulates the freedom to form opinions: “Everyone has the right to freely express and disseminate their opinion in word, writing and image and to obtain information from generally accessible sources without hindrance. Freedom of the press and freedom of reporting by radio and film are guaranteed. Censorship does not take place.” If legislation or case law disregards this fundamental right, remedy by the Federal Constitutional Court is possible. In 2014, the Court decided that the influence of state and state-affiliated members in the supervisory bodies of public service broadcasting must be consistently limited. In its 2018 decision on the broadcasting fee, the Federal Constitutional Court reaffirmed that the legislature must take measures that are intended and suitable to achieve and secure the highest possible degree of balanced diversity in private broadcasting.
Further regulation for the media is characterised by federalism. Federal laws govern business in general. The associates of limited companies and limited partnerships must be published in the company’s register. The peculiarities of the media as part of culture, on the other hand, fall within the competence of the federal states. They can make their own regulations or establish common rules through treaties. The Interstate Media Treaty and its concretising directives is, therefore, the main media law that regulates media ownership and control along with the Act against Restraints of Competition. As a rule, plural bodies, the composition of which is not determined by the governments, but by the state parliaments, are responsible for implementing the rules and monitoring their compliance.
According to § 60 sec. 6 of the Interstate Media Treaty, every three years, the Landesmedienanstalten, the authority that supervises commercial broadcasting, publish a report by the Commission on Concentration in the Media (KEK) on the development of concentration and on measures to safeguard diversity of opinion in private broadcasting. It takes into account 1) links between television and media-relevant related markets, 2) horizontal links between broadcasters in various distribution areas, and 3) international interdependencies in the media sector. Further provisions are detailed out in the Telecommunication Law, the Press Act for the federal states, specific broadcasting laws within the federal states, the Act on the Unification of Regulations on Certain Electronic Information and Communication Services, the Interstate Treaty on Broadcasting Licence Fee, and the Act regulating access to federal information (Freedom of Information Act – IFG). This body of laws ensures a far-reaching transparency of media ownership.
Out of the 20 criteria that EurOMO uses for assessing the legal risks, the highest ranking is reached in seven criteria and the second highest ranking in six criteria. The lower ranking of 1 (five criteria) applies with regard to the requirements for updates of ownership information, the government overrule in case that the cartel law applies, the legal provisions for content curation, the exposure of public interest content, and the sanctions with respect to content curation on digital intermediaries. The two criteria with a 0 ranking apply to disclosure of information on state funding, with this funding method not being a practice in Germany at all (this does not include the licence fee for public service media), and the legal provisions for separating newsrooms from the management (which is a strong tradition in Germany). Thus, it is mainly the area of digital media which lags behind, compared to the strongly regulated traditional media. On digital intermediaries, transparency is not given, compared to the extent of transparency achieved by the law in print and audio-visual media.
Allianz für Rundfunk- und Kulturfrequenzen. 2022. Terrestrische Rundfunkverbreitung in der
digitalen Gesellschaft 2030+
Available at: https://www.zvei.org/presse-medien/publikationen/sicherung-der-rundfunk-und-kulturfrequenzen
Bundeskartellamt. 2020. „Bundeskartellamt brings an end to minimum sales requirement in the press wholesale sector”
Available at: https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2020/22_01_2020_Presse-Grosso.html
Bundesnetzagentur. 2021. Net Neutrality in Germany: Annual Report 2020/2021
Available at: https://www.bundesnetzagentur.de/SharedDocs/Downloads/EN/Areas/Telecommunications/Companies/Market…
Bundesnetzagentur. 2022. „Bundesnetzagentur prohibits zero-rating options ‘Telekom StreamOn‘ and ‘Vodafone Pass‘”
Available at: https://www.bundesnetzagentur.de/SharedDocs/Pressemitteilungen/EN/2022/20220228_streaming.html
Bundesverfassungsgericht. 1969. Beschluss vom 26.02.1969 – 1 BvR 619/63
Available at: https://openjur.de/u/221884.html
Die Medienanstalten. 2021. Mediengewichtungsstudie 2021-I. Gewichtungsstudie zur Relevanz der Medien für die Meinungsbildung in Deutschland
Available at: https://www.die-medienanstalten.de/fileadmin/user_upload/die_medienanstalten/Themen/Forschung/Mediengewi…
Die Medienanstalten. 2022a. Zukunftsorientierte Vielfaltssicherung im Gesamtmarkt der Medien Konzentrationsbericht der KEK.
Available at: https://www.kek-online.de/publikationen/medienkonzentrationsberichte/siebter-konzentrationsbericht-2021
Die Medienanstalten. 2022b. „Medienvielfaltsmonitor”
Available at: https://www.die-medienanstalten.de/themen/forschung/medienvielfaltsmonitor
heise online. 2015. „Fast alle ARD-Radiosender stellen Mittelwelle ein”
Available at: https://www.heise.de/newsticker/meldung/Fast-alle-ARD-Radiosender-stellen-Mittelwelle-ein-2512316.html
Hölig, Sascha, Uwe Hasebrink, and Julia Behre. 2021. Reuters Institute Digital News Report 2021 – Ergebnisse für Deutschland. Hamburg: Verlag Hans-Bredow-Institut
Kommission zur Ermittlung der Konzentration im Medienbereich (KEK). 2022. „Zuschaueranteile 2022 in Prozent”
Available at: https://www.kek-online.de/fileadmin/user_upload/KEK…
VAUNET. 2022. „Mediennutzung 2021: Audio- und audiovisuelle Mediennutzung steigt in Deutschland erstmals auf 10 Stunden pro Tag“. Available at: https://www.vau.net/pressemitteilungen/content/mediennutzung-2021-audio-audiovisuelle-…