This working paper presents the current legal situation for software-based offerings by public service media providers in Germany. It identifies concrete legal requirements for software design.
Rhein, Valerie; Dreyer, Stephan; Schulz, Wolfgang (2021): Rechtliche Vorgaben für die Gestaltung von Software öffentlich-rechtlicher Medienplattformen. Gesetzliche und verfassungsrechtliche Programmaufträge und deren Abbildbarkeit in Strukturen, Verfahren und Code [Legal Requirements for the Design of Software of Public Media Platforms. Legal and Constitutional Programming Mandates and Their Representability in Structures, Procedures and Code]. Hamburg: Verlag Hans-Bredow-Institut, May 2021 (Working Papers of the Hans-Bredow-Institut | Project Findings No. 56), ISSN 1435- 160-0, ISBN 978-3-87296-168-6, DOI: https://doi.org/10.21241/ssoar.73198
In addition to classic radio and television programmes, media providers - as many other media companies organised under private law - also offer media services on the internet. Public service offerings differ from private online offerings primarily in that the activities of public service providers arise within a framework of legal requirements. In these cases, this framework is surrounded not only by the generally applicable media regulatory requirements for journalistic-editorial offerings on the internet, but also by legal provisions that mandate public service broadcasters to provide certain media offerings and set procedural and performance-related requirements for these offerings.
In recent years, the classic legal programming mandate for public broadcasters has expanded into a cross-media functional mandate of public media providers, which they interpret, concretise and implement in media offerings within the framework of procedures laid down by law. Particularly in the area of non-linear offerings on the internet, where users have the choice from a large abundance of posted content and sometimes also post content or statements themselves in the form of interactive offerings, the provision of public service offerings consists not only of the production of the media content itself, but also of the creation of software-based platforms through which this content is made accessible and findable. As a result, the selection, programming and design of these software systems are increasingly coming under the scrutiny of public media discourses.
As part of the project "Coding Public Value: Public Service Media and Software for the Common Good", funded by the Bavarian Research Institute for Digital Transformation (bidt), our project team looks from an interdisciplinary perspective at how legal, political and user-oriented requirements for the software of public service media providers can be implemented in software with a focus on content management systems, recommender engines and filters. Thereby, we focus on the question of which institutional, political and organizational prerequisites exist in order to operate such media platforms based on software engineering that is oriented towards the common good. The project combines science and technology studies, media and communication research, legal studies and empirical software engineering in close, interdisciplinary cooperation.
This working paper presents the current legal situation for software-based offerings of public service media providers in Germany and identifies concrete legal requirements for software design. In addition to possible substantive legal requirements for the software itself (in the form of software requirements), the question of which concrete actors are responsible for the specification of legal requirements, some of which are vague or goal-oriented, and to what extent the requirements relate to specific procedural processes also plays a central role. Thus, the study shows the legal mandates, their (self-) concretisation, and their representability in organisational structures, design procedures and software engineering. For this purpose, the study first classifies the "public value" concept from a legal point of view (chap. 2.), then works through the existing legal mandate-related requirements (chap. 3) and examines the extent to which these filter through to the level of software design (chap. 4).
Rhein, V.; Dreyer, S.; Schulz, W. (2021): Rechtliche Vorgaben für die Gestaltung von Software öffentlich-rechtlicher Medienplattformen. Gesetzliche und verfassungsrechtliche Programmaufträge und deren Abbildbarkeit in Strukturen, Verfahren und Code [Legal Requirements for the Design of Software of Public Media Platforms. Legal and Constitutional Programming Mandates and Their Representability in Structures, Procedures and Code]. Hamburg: Verlag Hans-Bredow-Institut, Mai 2021 (Working Papers of the Hans-Bredow-Institut | Project Findings No. 56), ISSN 1435- 160-0, ISBN 978-3-87296-168-6, DOI: https://doi.org/10.21241/ssoar.73198.
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The Authors
Valerie Rhein is a doctoral candidate at the Bavarian Research Institute for Digital Transformation (bidt) of the Bavarian Academy of Sciences and Humanities and, together with the Leibniz Institute for Media Research | Hans-Bredow-Institut (HBI), contributes the jurisprudential perspective to the project "Coding Public Value".
Dr. Stephan Dreyer is Senior Researcher Media Law & Media Governance and spokesperson for Research Programme 1 "Transformation of Public Communication - Journalistic and Intermediary Functions in the Process of Opinion Formation" at the HBI.
Prof. Dr. Wolfgang Schulz is Director of the HBI, Professor of "Media Law and Public Law including their Theoretical Foundations" at Universität Hamburg and Director of the
Alexander von Humboldt Institute for Internet and Society in Berlin.
The interdisciplinary
project "Coding Public Value: Public Service Media and Software for the Common Good" examines the possibility of shaping media policy with the help of software development. The core of the project is to examine approaches and methods of software development for public media platforms that not only serve business models, but also are oriented towards the public good and consider media law regulations. The project, which is funded by the bidt, combines science and technology studies, communication studies, law and software engineering in an interdisciplinary network. More at:
https://leibniz-hbi.de/de/projekte/coding-public-value.
