7. Broadcasting judgment
The 7th broadcasting judgment of the Federal Constitutional Court of October 6, 1992 ( reference: BVerfGE 87, 181 - Hessen 3 ) marks the seventh in a series of judgments of the Federal Constitutional Court on freedom of broadcasting in German jurisprudence . The judgment dealt with the type and extent of the financing of public service broadcasting.
facts
The Hessischer Rundfunk broadcast advertising on its third television program Hessen 3 since 1985 as the only third television program in order to finance the radio program hr4 from the advertising income. In the Interstate Broadcasting Treaty of 1987, a ban on advertising in the third television programs was stipulated, but there was a transitional arrangement for Hessischer Rundfunk, which meant that it only had to stop advertising in the Hessen 3 television program if the necessary financial resources for the hr4 radio program were otherwise available would; according to the protocol, this should be the case by the end of 1991 at the latest.
However, advertising revenue fell continuously and the Hessischer Rundfunk was not taken into account in the State Broadcasting Agreement . The state of Hesse was only able to extend the transition period by one year and added the deadline of December 31, 1992 as Section 3a in the HR Act, in order not to let the entire interstate broadcasting agreement fail.
The Hessischer Rundfunk appealed against this with its constitutional complaint because it saw its freedom of broadcasting violated. As a result of the prohibition of advertising without any other compensation through additional funds, the constitutionally standardized basic service is no longer guaranteed, since the hr4 program would have to be discontinued without additional income.
After the legal basis was changed in the course of the 1991 Interstate Broadcasting Treaty, again with the same deadline, the Hessischer Rundfunk filed a constitutional complaint against this for the same reasons.
Summary of the judgment
In principle, the legislature is not obliged to allow advertising in the public service programs, but it must in any case ensure the financing in another way. Allowing advertising as the main source of income for broadcasters is not in the interests of public broadcasting.
The funds allocated to a broadcaster must enable functionally appropriate funding. However, this should not focus on the financing of each individual broadcasting program, rather the basic supply and also the regional supply must be ensured by the allocated funds. How the broadcaster ultimately uses the money is up to them to decide.
For the reasons
- P. 70: “The legislature enjoys extensive freedom in structuring this order. However, if, in the interests of free individual and public opinion-forming, he decides to entrust the broadcasting event in whole or in part to public broadcasters, then he is constitutionally obliged not only to respect their fundamental rights. Rather, he is also obliged to provide them with the financial resources they need to carry out the task. Otherwise they would not be able to perform the service required by Article 5, Paragraph 1, Sentence 2 of the Basic Law. This obligation of the legislature to guarantee the financing of the public broadcasting corporations corresponds to a right of the broadcasters, also following Article 5, Paragraph 1, Sentence 2 of the Basic Law, to receive the funds necessary to fulfill their mandate. "
- P. 71: “How the legislature fulfills this constitutional obligation is basically a matter for its decision. However, he has to consider the function of public broadcasting. The type and scope of financing must correspond to it. [...] What the constitution requires from a functional point of view, the legislature must not thwart with financial regulations. "
- P. 75: "The task that public service broadcasting has to fulfill in the dual system would not do justice to a method of financing that primarily referred it to advertising income, because it is precisely the advertising financing that emanates the constraints on programming and diversity, which can be observed on private radio. The type of financing according to public broadcasting is rather the license fee financing. "
- P. 76: “That does not mean, of course, that other sources of finance, namely advertising income, are prohibited as long as they do not push fee financing into the background. [...] However, the legislature is not constitutionally obliged to allow public broadcasters to receive advertising revenue. The only decisive factor is that the financing of the activities of the public broadcasting corporations is adequately secured. They only have a constitutional right to that. "
- P. 81: “The determination of what is necessary for the fulfillment of a function cannot be left to the broadcasters alone. They do not provide a sufficient guarantee that they will keep within the framework of the functional requirements when demanding the financial resources to be raised above all by the recipients. Like any institution, broadcasting corporations have an interest in self-assertion and expansion that can take on a life of its own in relation to the function imposed on them. This is all the more true under the conditions of competition with private organizers, who are freer both in raising their funds and in designing their programs. "
- P. 86: “The reference variable for determining what is necessary is the entire program of a broadcasting company. In this, not in every single program or even in every broadcast, it must fully realize the mandate of public service broadcasting. Individual programs, on the other hand, can set specific priorities or focus on specific target groups. How the broadcasting corporations distribute the available funds within the framework of the statutory provisions on individual programs or program sections is up to them. Additional financing claims cannot be derived from this. According to the constitution, the only thing that matters is whether the amount of the license fee and the amount of legally permitted advertising, together with the other sources of income for the broadcasters, enable the public broadcasting to be financed properly. "