11. Broadcasting judgment
The 11th broadcasting judgment of the Federal Constitutional Court of February 20, 1998 (reference: BVerfGE 97, 298 Extra Radio Hof ) designates the eleventh in German jurisprudence in a series of judgments by the Federal Constitutional Court on freedom of broadcasting . The judgment declared that private broadcasters had fundamental rights.
facts
In Bavaria, private radio programs are prohibited on the basis of Art. 111a of the Bavarian constitution . Private broadcasters are only allowed to organize programs sponsored by the Bavarian State Center for New Media (BLM).
The program extra radio from court sent since 1987 time part operates with the program Radio Euro Heart . The BLM wanted to end this, but extra-radio refused to work with the other broadcasting partner, so that in 1992 the BLM allocated the frequency to Radio Euroherz alone. The application for interim legal protection before the Bayreuth Administrative Court was initially unsuccessful, but the appeal to the Bavarian Administrative Court was successful, and the court obliged BLM to continue broadcasting the program until the main issue had been decided. The BLM lodged a constitutional complaint against this with the Bavarian Constitutional Court . This overturned the decision of the administrative court because it violated the Bavarian constitution; Private broadcasters could only invoke a violation of the prohibition of arbitrariness in decisions by the BLM and would otherwise have no rights.
Extra-radio lodged a constitutional complaint against this decision with the Federal Constitutional Court. Not only the BLM is capable of fundamental rights and thus has complete power over its decisions, but also the individual private broadcasters themselves. In this respect, the decision violates freedom of broadcasting. The Federal Constitutional Court ordered the BLM to continue broadcasting extra-radio until the main issue was decided.
Summary of the judgment
The fundamental right to freedom of broadcasting is fundamentally available to all natural and legal persons who organize broadcasting programs. This also applies in Bavaria because it is not the BLM itself, but the individual broadcasters who organize radio programs. This also applies if no radio program has actually been broadcast yet, but an application for a broadcasting license has been submitted to the responsible state media authority. In this respect, the basic right can also be asserted against the BLM itself.
The BLM therefore has no complete decision-making power against which broadcasters can only assert a violation of the prohibition of arbitrariness, and it must not withhold any fundamental rights from them. In this respect, the decision of the Bavarian Administrative Court violates the fundamental right to freedom of broadcasting.
For the reasons
- P. 55: “Broadcasting freedom is essentially program freedom. It ensures that the radio can decide, free from external influence, how to carry out its journalistic task. Therefore, regardless of the legal form under public or private law, commercial or non-profit activities, the basic right is available to all natural and legal persons who organize radio programs. "
- P. 60: “In fact, however, the private providers are the sole producers of the program. Neither the BLM nor the operating companies produce their own programs. Nor do they put programs together from private offers. With the exception of the nationwide radio program, the private providers not only deliver individual contributions, but also regularly complete programs in accordance with the law. Accordingly, the law requires applicants to submit a program description and a program scheme. The programs are also not created on behalf of or following instructions from BLM. Rather, the providers have freedom of design within the framework of legal requirements. The BLM's task is limited to approving private programs. The broadcast program, however, is not subject to the approval of the BLM and is not known to the BLM before it is broadcast. Nor does it appear to the outside world as a program carrier. The approved programs are broadcast under the name of the private provider. "
- P. 64/65: “The scope of the protection of fundamental rights in terms of personnel as well as material depends essentially on the dangers that threaten the fundamental rights protected. The risk of influencing the program freedom, which is at the core of the fundamental rights guarantee, is particularly great when selecting applicants. If the number of applicants exceeds the broadcasting capacity, it cannot be ruled out that the attitude to the program offered will influence the selection decision or that applicants will make content adjustments in advance which they hope will increase their chances of admission. This applies not only to the initial selection, but also to the renewal of a license after a broadcast period has expired. [...] Just as the already licensed broadcasters can invoke the protection of the freedom of broadcasting with regard to the legal position granted to them, the applicants must therefore also be able to assert the basic right with regard to the constitutionally required selection and licensing rules that govern broadcasting freedom in the application situation to back up."
- P. 70: "The Bavarian Constitutional Court was then free to interpret Art. 111 a BV in the sense of a prohibition of direct private sponsorship of broadcasting in Bavaria. Furthermore, he was at liberty to declare the Media Testing and Development Act compatible with Art. 111 a BV. However, he was not allowed to withhold the protection of this fundamental right from the private broadcasters who applied on the basis of this law for admission to an activity that turned out to be a broadcasting event within the meaning of Article 5 (1) sentence 2 of the Basic Law. Rather, it had to be taken into account when interpreting and applying Art. 111 a BV. It is therefore incompatible to give Art. 111 a BV the meaning that applicants for admission can only assert that the BLM violated the principle of equality and the prohibition of arbitrariness anchored in it when selecting the provider. "
Consequences of the judgment
extra-radio did not receive any further license from the BLM, but was able to continue broadcasting on the basis of this judgment. It was only in 2001 that BLM granted extra-radio a license again.