In the fifth article in our series of interviews on platform regulation, Professor Dörr stresses the importance of distributors and search engines, "ensuring access and findability of public value content is crucial for the shaping of public opinion and therefore for democratic societies".

Access and findability of public value content

Dr Dieter Dörr has been a Professor of Public Law, European and International Law, Media Law at the Johannes Gutenberg University of Mainz since 1995 and has been the Director of the Mainz Media Institute since 2000. He has specialised in German, European and International Media Law, covering both traditional mass media as well as the law of the new information technologies. Since 2003 he has also been a Judge of the Regional Court of Appeal (Oberlandesgericht) Koblenz.

Here he replies to the EBU's questions on the findability of public value content in a multiplatform world.

Why are must-carry rules for public value content still important in a multiplatform environment?

Ensuring access and findability of public value content is crucial for the shaping of public opinion and therefore for democratic societies. But unlike it is often argued, traditional tools such as so called ‘must-carry’ rules have not become obsolete but are still necessary for that purpose. While the use of linear television services remains stable at a high level, both in Germany and throughout Europe, consumption of other services is increasing. In 2014, viewing time of linear television in Europe was higher than ever before and linear television remains the most important way of consuming public value content. And even within the world of digital and multiplatform media, classic cable networks play a pivotal role in distributing traditional broadcasting services, such as linear television. In Germany alone, for example, 17.9 million households receive television via cable.

Therefore, it is still vital in a multiplatform environment, that cable networks disseminate those services which are key to overall plurality and cultural diversity within a democratic society. With this in mind, ‘must-carry’ regulations have to oblige cable network operators to distribute all public broadcasting channels within their networks, given the latter's outstanding importance for public opinion forming and cultural diversity.

Is there a case for regulating search engines (especially Google) in view of their influence on access to information and media pluralism, and/or in view of possible discrimination against other market participants?

Referring to other intermediaries, such as search engines, the answer to the question of how to ensure access and findability is far more complicated, but also of increasing importance. Due to the rising amount of opinion-forming content that is selected automatically, based on the use of algorithms, these services and their essential role in locating certain content within the internet are of particular interest. In their original conception, search engines were intended to hold the pivotal function of information intermediary. To speak metaphorically, if the internet were a library, search engines, and especially horizontal search engines, would be its catalogues and its librarians. Therefore, even if it may be possible theoretically to access particular online content through other technical means than search engines, in practice accessing particular online content depends on its findability through search engines.

To fully understand the challenge of upholding the standards to ensure a diversity of opinions under these circumstances, it is essential to critically assess the logic underlying search engines to determine the respective search results and their corresponding display. Search engines are not primarily concerned with a ‘contextual diversity of opinions’. Instead, the so called ‘relevance’ of a particular content or service - as determined by abstract criteria defined within the algorithm - is crucial. Notwithstanding the effective influence of each individual criterion on the ultimate ranking, the manner in which search engine operators define those parameters and thus attach ‘relevance’ to web contents is highly arbitrary.

Accordingly, the search algorithm itself must already be perceived as an influencing factor. To consider algorithms as a ‘neutral’ starting point, which, if necessary, could be manipulated manually, does not adequately reflect the problem at hand. Such a generous interpretation ignores the fact that the algorithm itself is already marked by a value-based judgment which might already have had a formative effect.

This being said, the role of search engines already exceeds the function of mere signpost. Coming back to the image of the internet as a library, search engines were originally intended as librarians but they have also become authors and publishers. Search engine operators have developed from mere content transmitters to providers of their own contents. By virtue of their business model’s vertical expansion, search engine operators are increasingly turning into proper competitors for conventional content providers, economic competition in the market and also in journalistic competition. An imminent threat of preferring one's own contents and services within those search engines is thus obvious.

The operating principles and the extent of the use of modern internet search engines illustrate – at least potentially – the power and influence these companies have on public opinion and therefore demonstrate the need to regulate these services properly.

And if yes, what form could such regulation take?

The influence internet search engines have on public opinion proves the necessity of proper regulation. Nonetheless their basic design also reveals the difficulties which occur, when we try to adapt traditional tools for ensuring a diversity of opinions, such as ‘must-carry’ rules. In fact the search results and especially the order in which they are listed are not the outcome of a (quasi-editorial) decision in regard to the individual case. To suggest an obligation for certain services of public interest to appear in every single search result misjudges the basic functioning of this type of intermediary.

In fact it is necessary to move away from regulating the concrete output of the search and to focus on the actual problem: the algorithm itself and its design. Providers of search engines must therefore be obliged to design their algorithms so to prevent any sort of discrimination. One possible solution could be achieved within the framework of an amended AVMS Directive. EU member states should consider at least the partial disclosure of the search algorithm to competent authorities, on a strictly confidential basis, for example ‘in camera’. Any such partial disclosure would, however, require that the potentially disadvantaged party substantiate beforehand that it was suffering from an unreasonable obstruction or discriminative practice.