5. Broadcasting judgment
The 5th broadcasting judgment of the Federal Constitutional Court of March 24, 1987 ( reference: BVerfGE 74, 297 - Baden-Württemberg ) describes the fifth in a series of judgments of the Federal Constitutional Court on freedom of broadcasting in German jurisprudence . The judgment clarified the definition of the term basic service and laid down the guarantee of further development of public broadcasters.
facts
The State Media Act of Baden-Württemberg, which came into force on January 1, 1986, placed the supply of regional and local radio programs entirely in the hands of private broadcasters and imposed extensive restrictions on public broadcasters in order to protect private broadcasters from competition.
Both the Süddeutsche Rundfunk and the Südwestfunk turned against this with their constitutional complaint. The relevant regulations violate the freedom of broadcasting, since public broadcasting may not be restricted to a pure basic service, while more extensive coverage is reserved exclusively for private broadcasters.
The Federal Constitutional Court suspended the ban on the regional radio program, Radio Stuttgart, of the Süddeutscher Rundfunk, pending a decision on the main issue.
Summary of the judgment
The court ruled parts of the law unconstitutional. The basic service of the public broadcasting corporations does not represent a minimum service. Nor can it be derived from this that certain tasks are ascribed to public broadcasters and others to private broadcasters.
According to the court, the universal service includes all programs that already existed on November 4, 1986 (the date of the 4th broadcasting judgment ). The broadcasting of new regional programs by public broadcasters is therefore not part of the basic service, but a ban on this is a violation of freedom of expression, the sole reason for which is to protect private broadcasters from competition, which cannot justify an encroachment on fundamental rights .
It is also inadmissible to prohibit public broadcasters from broadcasting Internet streams in principle. Freedom of broadcasting also includes enabling public broadcasters to adapt to new, future technologies such as the Internet.
For the reasons
- Marg. 97: "With the concept of universal service, the Federal Constitutional Court in its judgment of November 4, 1986 described tasks of broadcasting, the performance of which is also indispensable in the dual system of broadcasting based on the new state media laws and at least effective by the public broadcasters It must be ensured that, in principle, care must be taken to ensure that programs are offered to the population as a whole, which provide comprehensive information in the full breadth of the classic broadcasting mission, and that diversity of opinion is ensured in the manner required by the constitution. As is clear from the explanations on this, the term does not designate a minimum coverage to which public broadcasting is restricted or to which it could be reduced without any consequences for the requirements to be placed on private broadcasting. Nor is there a demarcation or division of tasks between public and private broadcasting, for example in the sense that programs or broadcasts that are part of the basic service are or could be reserved for public broadcasting, and all others for private broadcasting. According to the judgment of November 4, 1986, three elements are essential: a transmission technology in which reception of the broadcasts is ensured for all, and for the time being conventional terrestrial technology; Furthermore, the standard of content of the programs in the sense of an offer which, in terms of its subject matter and the nature of its presentation or treatment, corresponds not only in part but in full to the stated mission of broadcasting; Finally, the effective safeguarding of balanced diversity in the presentation of the existing directions of opinion through organizational and procedural precautions. "
- Marg. 98: “In the judgment of November 4, 1986, there was just as little need for a decision as to which programs of the public broadcasting corporations belong to the indispensable basic service, as in the present proceedings. In any case, the question cannot be answered in isolation for individual programs or program parts of these institutions, because the basic service always requires a plurality of programs. In the judgment of November 4, 1986, the Federal Constitutional Court assumed that at least the existence of the public broadcasting programs broadcast terrestrially at the time of this judgment is to be assigned to the essential basic service. "
- Marg. 116: “However, these economic reasons do not justify a ban on broadcasting contributions to regional and local opinion-forming. Market opportunities can be an economic issue, but not freedom of expression. As far as this is concerned, it means no more freedom of expression, even for the beneficiaries, if other expressions of opinion are prohibited. Apart from that, it is not clear to what extent the prohibition could serve the task of expressing the diversity of existing opinions as broadly and comprehensively as possible. Rather, the beneficiaries are protected against competitors even if they have more varied and better programs to offer than they do. Such a suppression of free journalistic competition and intellectual debate is incompatible with the basic idea of guaranteeing Article 5.1 of the Basic Law. Either the private organizers face the journalistic competition by endeavoring to offer varied programs that are interesting for the listener or viewer; then they fulfill their complementary and enriching function in the dual broadcasting system, and there is no need to ban public service programs. Or the private broadcasters are not in a position to make an offer that can stand against a competing public program; then even a legal prohibition of such competing programs cannot serve the freedom of opinion formation and in particular the freedom of broadcasting. If the legislature nevertheless enacts such a prohibition, this does not constitute a permissible embodiment of the freedom of broadcasting. "
- Marg. 159: “The need to enable public service broadcasting to adapt to changed circumstances exists even if the task of providing basic services should not shift to the area of new broadcast-like services. Under this condition, the participation of the public broadcasters in broadcast-like communication services can only contribute to the breadth and variety of the offerings in these services and create journalistic competition; in any case, this takes account of the requirements of freedom of broadcasting, and the better the public broadcasting service in this area fulfills the aforementioned classic mandate. It takes this into account when the justification for the government draft states that efforts are being made, in particular, to open up new types of on-demand services for numerous providers according to the rules of free competition. The providers should not only include press companies and other private providers, but also the public broadcasters, insofar as this is necessary so that they can continue to perform their tasks in the general structural change in the electronic media. "
Consequences of the judgment
With this ruling, the two public broadcasters were able to drastically expand their regional program offerings, which ultimately led to the establishment of the S4 Baden-Württemberg program .
With reference to this judgment, Süddeutsche Rundfunk later sued the Baden-Württemberg Administrative Court for numerous frequencies that were originally intended for private broadcasters: 107.5 Mudau (planned for Radio Regenbogen ), 105.5 Bad Mergentheim (planned for Hit-Radio Antenna 1 ) and 105.7 Stuttgart (planned for a completely new program under the leadership of RTL ), it also prevented the withdrawal of frequency 91.5 in Mannheim, which broadcast the ARD guest worker program but was intended for sunshine live . As a justification, it stated that both the regional programs Kurpfalz Radio and Franken Radio were on the air before November 4, 1986 and were therefore part of the basic service. The court finally found the Süddeutscher Rundfunk in the right on August 30, 1994, and the Federal Administrative Court rejected the complaint of the state media authority on July 19, 1995.