Germany's NetzDG era is over, but the instinct behind it, which is for national rules to steer what platforms show, has not gone away. It has moved from takedown deadlines to the Länder media treaties. The latest example is the second "Digitale Medien-Staatsvertrag" (DMStV II), a draft amendment to the Medienstaatsvertrag and the Jugendmedienschutz-Staatsvertrag. Its public consultation closed on 13 November 2026.
What the draft actually is
The Rundfunkkommission, the Länder body that prepares broadcasting law, discussed the proposals on 16 September 2026. The hearing document is dated 16 September 2026, was released for consultation on 28 September 2026, and runs to 186 pages. One precision matters for the record. The 16 September date is the date of the draft, and the consultation PDF was released later, on 28 September.
By the commission's own summary, the draft:
- loosens advertising rules and opens the door to regionalised advertising;
- develops a "public value" concept for how content is placed in feeds, together with rules on outlinks;
- asks AI-based offerings to take responsibility for what they deliver;
- adds tools against artificially inflated reach.
According to HORIZONT and dpa, it also creates a new category of "KI-Informationssysteme" with transparency duties. It protects "journalistisch-redaktionell verantworteten Angebote" against algorithmic disadvantage. The state chancelleries plan to evaluate responses in early 2027. I could not read the rendered PDF text, so the details of the youth-protection changes remain unverified here.
The strongest case for the Länder
The Länder have a real argument. Feeds and assistants increasingly decide which journalism people see, and a pluralistic public sphere is a legitimate constitutional concern in Germany. Findability rules for editorial content are a milder tool than content takedowns. They steer prominence and leave publication alone, and a transparent rule that stops a platform from quietly burying local reporting is arguably speech-protective. Germany also has a federal structure in which the Länder, not Berlin, hold media competence, so they cannot simply defer.
Where the draft collides with EU law
The difficulty is that the EU has already legislated on platform duties. The Digital Services Act (Regulation (EU) 2022/2065) sets harmonised due-diligence rules for intermediaries, and Germany's own Digitale-Dienste-Gesetz, signed 6 May 2024 and in force from 14 May 2024, was written to implement it. That is the successor architecture to the NetzDG.
Whether the Länder may still layer their own transparency and findability duties on top is now before the Court of Justice. On 10 July 2025 the Verwaltungsgericht Berlin (case VG 32 K 222/24) suspended a dispute between the Medienanstalt Berlin-Brandenburg and an audio-streaming provider established in another EU state. The court's question is whether the DSA regulates transparency obligations exhaustively, which would leave no room for national rules. It also asks whether the E-Commerce Directive makes such rules inapplicable to providers established elsewhere in the EU.
The reference is registered as Case C-474/25, lodged on 16 July 2025. It touches Article 27 of the DSA, which covers recommender-system transparency, and Articles 1(6) and 3 of Directive 2000/31/EC. I found no CJEU ruling yet. The link between the referral and the new draft is analytical and not a stated legal dependency. I did not find a document in which the Länder say the draft is conditioned on the outcome. The overlap is nonetheless direct. A draft that deepens findability and transparency duties for platforms is being written while the court has not said how much room for national rules exists.
Why this matters for innovation and speech
First, regulatory certainty. A provider building a recommender system or an AI assistant for the single market needs to know which rulebook applies. If sixteen Länder can each add prominence duties, the single market in digital services becomes a patchwork again. The same fragmentation problem was the main argument for the DSA.
Second, AI. Extending "responsibility" to AI-based offerings through a media treaty risks treating general-purpose systems as if they were editors. A proportionate approach would target specific, evidenced harms, such as undisclosed paid placement or manipulated reach. It would not impose editorial-style prominence mandates on tools that do not publish.
Third, speech. Any rule that favours "public value" content in a feed requires a regulator to define public value. Even with good intentions, a state-affiliated body deciding what deserves algorithmic lift is a different thing from a platform being transparent about how it ranks. Transparency is defensible, but mandated prominence is a speech risk that deserves the closest scrutiny.
What a proportionate path looks like
- Wait for the Court, or write conditionally. The Länder can draft findability and transparency duties so that they apply only where the CJEU confirms national competence, instead of asking industry to comply first and litigate later.
- Prefer disclosure to prominence. Requiring platforms to explain ranking criteria is easier to square with the DSA and with free expression than quotas or mandated lift.
- Keep AI duties narrow. Tie any obligation to a concrete harm and to providers that actually exercise editorial control.
- Respect the country-of-origin principle. Rules that bite only on German-established providers invite regulatory arbitrage, and rules that reach foreign-established ones invite exactly the conflict now before Luxembourg.
The consultation has closed and the evaluation is not due before 2027, so there is time to do this properly. The Länder's goals are legitimate. If the draft ignores the pending reference, Germany may spend years rebuilding rules that the CJEU later sets aside.