Brotzeit · Thoughts31 October 202613 min readVolker Schukai

Why the planned media quota endangers free speech

A polemical essay on Germany's second Digital Media State Treaty.

A democracy should become very cautious when it starts pre-sorting the right senders for its citizens. All the more so when the plan is promoted with a word nobody can object to: diversity.

Who wants to be against diversity? That is exactly what makes the term so politically convenient. Open access and reserved seats can both hide behind it. So with this bill we have to ask who is to be given preferred visibility, who decides, and who profits from that decision.

The second part of Germany's Digital Media State Treaty (Digitaler Medienstaatsvertrag Teil 2) gives plenty of reason to ask. The federal states are discussing extending media regulation to the digital public sphere. It is still a discussion draft; the consultation runs until 13 November 2026. One of its stated aims is to protect journalistic media from being crowded out by algorithms and to strengthen their financing.¹

The time to argue about the power of such instruments is before they are introduced.

Who gets a reserved seat in the feed

The draft discusses a minimum quota: every fifth algorithmic recommendation is to come from a specially privileged group of offerings. The number is still in brackets. One variant covers information and education, another goes further. Public broadcasters belong to the intended group; private providers can qualify as well. The algorithm still picks the concrete recommendation. So this is not about a minister ordering individual posts for our home feed.²

The core of the problem remains: the legislator would make the origin of a post a reason for preferred visibility.

For a news provider that can be a considerable economic advantage. For a competing provider it can mean that part of the attention is already taken before their reporting even gets a chance. How strong this crowding out would actually be depends on implementation and use. But preference is precisely the purpose of the instrument.

True, nobody is entitled to their post going viral. Nor does the social importance of a media house give it a natural claim to reserved recommendation slots.

An excellent article does not get worse because its sender lacks a funding status. A weak post does not get better because of a privileged sender. Anyone who wants to improve the quality of public debate has to explain why they do it by upgrading the institutional status of its participants.

The freedom to publish is progress

The internet has radically lowered the barriers to the public sphere. An expert can explain a mistake in a widely shared account. A local journalist can start her own outlet. A citizen can document wrongdoing without first having to convince an editor.

That is a democratisation worth defending against its detractors. The public sphere also belongs to people who never sit in an editorial meeting.

This digital public sphere is not completely free and equal, though. Platforms control access and reach; their commercial interests shape what we see. And freedom of expression is not, legally either, an unlimited licence for every statement. Article 5 of the German Basic Law protects expressing, disseminating and receiving information, but also names limits.³

The distinction matters. The political dispute over the quota concerns how visibility is distributed among legal offerings. You can consider it dangerous without claiming that every free word is already banned.

The real concern is subtler: a public sphere can remain formally open and still be organised so that certain institutions gain a lasting head start. The chance to speak remains. The chance to be heard is additionally shaped by a legally granted status.

Who stands behind it, economically and politically

Understanding the interests involved needs no speculation about secret back rooms. The main demands are public.

On 21 April 2026, the public broadcasters ARD and ZDF, the publishers' associations BDZV and MVFP and the private media association VAUNET published joint key points. They call for control and remuneration when AI uses their content, and for rules on access, visibility and financing. They expressly welcome creating the necessary rules in the Digital Media State Treaty. That was five months before the current draft.⁴

In its 2025 annual report, VAUNET describes its work for private media and their refinancing. In connection with the state treaty it says that "years of groundwork" were making themselves felt.⁵ At a VAUNET gathering in Berlin on 22 September 2026, VAUNET chair and RTL manager Claus Grewenig and Torsten Welling, a Rhineland-Palatinate state secretary responsible among other things for media, spoke about the reform. Rhineland-Palatinate chairs the states' broadcasting commission.⁶

The media authorities are also pushing to extend findability rules. In their December 2025 position paper on the European media directive, they call for online platforms to be included and recommend examining an extension to individual content items.⁷

So three roles are visible: the states set the legal framework. Media companies and their associations represent economic interests. The regulators develop proposals for regulation.

None of this is unusual at first. It becomes uncomfortable when protecting existing businesses is equated so naturally with protecting democracy that any criticism sounds like an attack on journalism.

A legally favoured position can secure reach, customer contact and revenue. It is an economic advantage even if not a single euro is paid out of a subsidy pot. That is why we should conduct this debate as soberly as other debates about advantages granted by the state.

A real problem does not justify every solution

The media providers' worries are by no means invented. The Pew Research Center studied the browsing behaviour of 900 adults in the US. In Google searches with an AI summary, users clicked a traditional search result in 8 percent of visits; without a summary it was 15 percent. This is an observation with methodological limits, not proof of a precisely quantifiable causal effect in Germany. But it shows why providers fear for access to their audience.⁸

Journalism costs money. Anyone who exploits reporting commercially should not simply be able to evade all responsibility. Remuneration, competition law and fair access conditions are worth fighting over.

But the financing problem does not yet answer the question of who should get a preferred place in my feed.

Even among those representing journalists there is dissent. The German Journalists' Association (DJV) welcomes strengthening journalistic offerings but considers the mandatory preference for content classified as reliable problematic. Its decisive question: "Who decides that?"⁹

That question goes to the heart of it. Whoever may award a special status holds an additional position of power in public conversation.

A change of power as the stress test

The draft relies on state media authorities organised at a distance from the state, and its explanatory notes stress criteria that are not based on content. Users are also to be able to change visibility and sorting individually; the explanation expressly mentions preferring or hiding individual sources. A fair critique has to acknowledge these safeguards.¹⁰

They do not settle the political question, though.

Would we support the same powers if the legal framework were shaped by political forces whose idea of the media frightens us?

A change of government does not automatically end the independence of the media authorities. But laws, procedures and institutional appointments are not permanently beyond political change. Whoever creates new positions of power today must be asked how they could be used under worse conditions.

Germany has concrete experience of this. In 2014 the Federal Constitutional Court objected to the composition of the ZDF supervisory bodies. State and state-affiliated members may make up at most one third; state influence had to be limited. The ruling concerns institutions other than the award planned here. But it shows that the principle of distance from the state has to be actively enforced. Mentioning it is not enough.¹¹

A power we would only entrust to the supposedly right people is poorly suited to a lasting democratic legal framework.

So my accusation is not that those involved already want to build an authoritarian media order. My concern is an instrument that would make such an order easier to expand: the legally secured preference for selected senders.

How a new normal can arise step by step

Findability regulation already exists, for example for the user interfaces of smart TVs. The media authorities describe it as a means of safeguarding diversity.¹² Extending it to individual posts on social media, however, changes the reach of this approach: a rule for orientation between offerings now reaches deeper into the ongoing flow of public communication.

The draft expressly provides for transferring the model of preferred individual content to media intermediaries. At the same time it contains broader control of opinion power. A political will towards media concentration that is easier to control cannot simply be inferred from this.¹⁰

The risk is rather that well-meant support entrenches existing structures. Whoever receives the privileged status may gain economic stability; whoever remains outside has to compete for attention under less favourable conditions. Such a feedback loop could weaken the very diversity it is meant to protect.

This is where the legitimate worry about salami tactics begins. First a category is created. Later its preferential treatment can be extended. After that, requirements could be tightened or carried over to additional services. That is a possible pattern of development, not evidence of a secret plan already decided.

Which is exactly why we need the debate about limits. Which power would be too much? Which extension would we expressly rule out? Where does protecting the open public sphere end and its administrative sorting begin?

Anyone who asks these questions only once an unwelcome majority is in charge is too late.

A liberal media policy gives users more control

The alternative is not to leave every decision to platform corporations. A liberal media policy can limit their power and at the same time refrain from defining preferred senders by law.

It should give users real choices: between sorting methods, between sources and, where possible, between competing services. It should make arbitrary interventions traceable and open to challenge. The Digital Services Act already contains tools for this, including transparency and complaint rights and, for very large platforms, a recommendation option without profiling.¹³

The draft's priority for user choice points in the right direction. That is what the reform should be measured against. Can I actually shape my information environment easily and permanently? Or do I have to laboriously configure my way out of a selection favoured by law?

Support for journalism should also stay open to new providers. The German Association for the Digital Economy (BVDW) expressly calls for transparent, non-discriminatory criteria that include innovative journalistic offerings, and warns against additional national double regulation.¹⁴

I want media that can do research without bending over backwards for every click. I equally want a public sphere in which an unknown author can challenge an established newsroom. Both deserve protection.

My trust in journalism grows through verifiable work, visible corrections and the freedom to disagree. A head start organised by law cannot replace that.

Before we distribute new power over visibility under the promise of diversity, we should think of those who might control it later.

Freedom must be able to survive bad governments too. That is exactly what we must design its rules for.

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