Germany

[DE] Media Concentration Report Published

IRIS 2004-2:1/20

Carmen Palzer

Institute of European Media Law (EMR), Saarbrücken/Brussels

On 9 December 2003, the Regional Media Authorities published the second report on media concentration by the Kommission zur Ermittlung der Konzentration im Medienbereich (Media Concentration Commission ­ KEK). Under section 26 of the Rundfunkstaatsvertrag (the Agreement between the Federal States on Broadcasting ­ RStV), a report of this kind must be published every three years.

Section 26, paragraph 6 of the RStV provides that the report must contain, in particular, comments concerning the integration between television and other media-related markets (e.g. broadcasting rights or the markets in technical and administrative services for digital and pay TV), horizontal integration between broadcasters in different transmission areas and international integration in the media field. This covers both the description of the relationships between broadcasters under company law and their vertical and diagonal integration with other media markets. The report also gives an opinion on the rules on the protection of diversity of opinion contained in the RStV and makes suggestions as to how these rules might be reformed. Over and above this, the investigation extends to the European Union's role in the field of media concentration, along with the development of regulations on media concentration in the USA, Great Britain, Italy and Switzerland.

The title of the report, "Protecting Diversity of Opinion at Times of Radical Change", relates as much to the technical revolution to be expected as a result of the changeover from analogue to digital broadcasting technology as to changes in the economic environment, particularly the challenges brought about by the current economic downturn in the media markets. The period during which the report was being drawn up saw the collapse of the Kirch media group, which the KEK believes to have had some influence on media developments ­ albeit not yet having caused any decisive horizontal deconcentration in the area of nationwide private television. Although two new market players had appeared in the shape of Haim Saban and the Permira Investment Group, the presence of the RTL Group and ProSiebenSat1 Media inc. meant that, as before, two private operators with high audience figures taken together with the public-service broadcasters accounted for more than 90 % of the total television audience in Germany.

In the KEK 's opinion, the audience ratings model, which is used in Germany to determine the power of a company's or a consortium's opinion, has basically stood the test of time. The RstV has adopted the audience ratings criterion, which weighs heavily in favour of journalistic competition, as the main indication of a dominant power of opinion. The presence of a company in related media markets is also regarded as a factor that brings competition law into play. That is why the report extends beyond actual television markets to related markets as well.

Alongside its main reporting task, the report attributes to itself a warning role. It says that it has become clear that only economically powerful operating groups can be expected to provide a range of programmes capable of winning through and that it is possible that the change in the participating and controlling rights of established television broadcasters will give rise to lasting changes on the whole broadcasting scene. As a result of the diverse links between the various media sectors and their related markets, a thorough general investigation may be the only way of countering the threats to diversity of opinion.