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Should in-car entertainment systems be deemed regulated user interfaces? - State media authorities turn their focus to carmakers

22.04.2024

“Groundbreaking” decision by the Commission for Licensing and Regulation

Motor vehicles operated in Germany will in future be subject to media regulation: As the Commission for Licensing and Regulation (Kommission für Zulassung und Aufsicht) announced (in German only), for the first time it has made in-car entertainment systems the subject of its regulatory practice and categorised the Audi and BMW/Mini offerings as user interfaces within the meaning of the Interstate Media Treaty. Going even further, it also categorised Tesla’s media player as a regulated media platform.

According to the Commission, in-car entertainment systems are new gatekeepers that decide which media offerings car drivers listen to or watch and which the legislator therefore consistently wishes to regulate. The aim of regulation is to ensure that content can be found, thus ensuring diversity.

It is unclear at this point what specific rules the state media authorities actually intend to enforce within the system displays through this classification which is “groundbreaking” from their perspective. Blanket regulation of in-car entertainment systems, as suggested in the Commission’s notice, will in any case be difficult to legally enforce.

As the following classification shows, the Interstate Media Treaty not only requires a differentiated consideration of the various content overviews, but various exceptions must also be taken into account in individual cases. Decisive changes for vehicle manufacturers and drivers are therefore likely primarily in the area of radio.

The terms “media platform” and “user interface”

The law defines a media platform as any medium that combines broadcasting or other media into an overall offering determined by the provider. This requires the provider itself to decide conclusively on the content provided. The offerings are made accessible via user interfaces that provide a textual, visual or acoustic overview of the content of individual media platforms. Put simply, a user interface is the display and control level for media platforms.

Providers of user interfaces are governed by numerous duties, in particular to disclose content arrangement criteria and to ensure that the content they present can be found without discrimination. In addition, content that makes a special contribution to the diversity of opinions and offerings (“public value offerings”) must be especially easy to find, i.e. prioritised.

The radio feature as a key subject of regulation

This yardstick clearly shows that in-car entertainment systems cannot be categorised as user interfaces and/or media platforms in general, but only in relation to their different summary levels. In addition, not being a provider, a vehicle manufacturer is not governed by any regulatory obligation if an integrated media application (such as Spotify) is the responsibility of a third-party provider only.

Regulation of the user interface of in-car entertainment systems is therefore likely to be limited to the display of radio stations. A distinction must also be made in this respect:

Displays that (at least also) contain analogue FM stations vary depending on the location and the broadcast frequencies that can be received there, so they are never based on a conclusively defined overall range of stations and therefore do not represent a media platform.
The situation in which only digitally received DAB+ stations are displayed is to be assessed gradually in a different way, as these represent multiplexes, which contain a final selection of stations and have been categorised as a media platform by the state media authorities. However, the presumption of a user interface is at least doubtful even in this respect, as there is no definitive reflection of a media platform, but the summary there is also determined by the location of the vehicle and the resulting, possibly fluctuating combination of available nationwide, state and regional stations.

Practical limits to regulatory duties

Finally, a blanket application of the user interface regulation is also prohibited in view of various exceptions that can restrict the list of regulatory duties in individual cases as a whole or at least to a considerable extent:

For example, certain regulatory duties will no longer apply if the provider is able to prove that their implementation is technically impossible or only possible with disproportionate effort. This is likely to be especially relevant if the complex reprogramming of systems already on the market becomes necessary, especially with regard to the location-dependent sorting of “public value” broadcasters.
Media platforms with fewer than 20,000 daily users in an average month are also only partially regulated due to their limited opinion-forming impact. As a distinction must always be made between different entertainment systems and model ranges, taking into account their actual use, vehicle models that are not widespread in Germany are likely to benefit from this at least.
Finally, it is extremely controversial whether the outlined platform regulation, as set out in the Interstate Media Treaty, applies at all to those (vehicle) manufacturers with a registered office located only in another EU country. Only recently, the CJEU ruled (judgment of 9 November 2023, C-376/22) that national media regulation may not in principle apply automatically to providers from other EU countries as well, since this would contradict the country-of-origin principle enshrined in European law. If this case law were to be applied consistently, European vehicle manufacturers would be exempt from user interface regulation overall.