Bavarian Media Act

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Basic data
Title: Law on the development, promotion and
organization of private radio programs and
other telemedia in Bavaria
Short title: Bavarian Media Act
Previous title: Media testing and development law
Abbreviation: BayMG
Type: State Law
Scope: Free State of Bavaria
Legal matter: Special administrative law , media law
References : BayRS 2251-4-S
Original version from: November 22, 1984
( GVBl. P. 445)
Entry into force on: predominantly 1st December 1984
New announcement from: October 22, 2003
(GVBl. P. 799)
Last revision from: November 24, 1992
(GVBl. P. 584)
Entry into force of the
new version on: 		1st December 1992
Last change by: Art. 39b BayDSG of May 15, 2018
(GVBl. P. 230)
Effective date of the
last change: 		May 25, 2018
(Art. 40 Paragraph 1 G of May 15, 2018)
Please note the note on the applicable legal version.

The Bavarian Media Act (BayMG) has a special position among the state media laws . It regulates private broadcasting activities in public responsibility and sponsorship under public law.

History

The Bavarian Media Act (BayMG) of November 24, 1992 (GVBl. P. 584) came into force in accordance with its Art. 43 para. 1 sentence 1 in force on December 1, 1992. It replaced the Media Testing and Development Act (MEG) of November 22, 1984 (GVBl. P. 455, ber. 546) in the version of the new notice of December 8, 1987 (GVBl. P. 431), its validity as an experimental law was largely limited to December 1, 1992 (Art. 39 para. 2 MEG). After several changes, the BayMG was published on October 22, 2003 (GVBl. P. 799) and has been changed several times since then. The change by law of July 12, 2016 (GVBl. P. 159) is not insignificant. As of September 1, 2016, all permits for the distribution of offers, as described in Art. 26 BayMG, will be granted for an unlimited period and the existing, previously limited-time approvals will be expired by means of a legislative act (Art. 26 Para. 2 Sentence 2 BayMG new version .). The allocation of transmission capacities, however, is still only temporary (Art. 26 Para. 2 S. 4 BayMG new version). The amendment by law of December 13, 2016 (GVBl. P. 350) extends the funding of local television from state budget funds until the end of 2020. The further amendment law of December 20, 2016 (GVBl. P. 427), which was approved on January 1, 2017 has come into force, implements the requirements of the BVerfG from the so-called ZDF ruling of March 25, 2014 - 1 BvF 1, 4/11 (BVerfGE 136, 9) for the media council of the state headquarters and in parallel for the broadcasting council of the Bavarian Broadcasting Corporation . With a view to the EU General Data Protection Regulation , which will come into force on May 25, 2018 , Article 39b of the Bavarian Data Protection Act (BayDSG) of May 15, 2018 amended numerous laws; Art. 39b para. 18 BayDSG contains - besides minor adjustments - above all the new regulation of data protection within the scope of the Bavarian Media Act (Art. 20 BayMG).

Private broadcasting under public law

The "limping dual broadcasting model" of Bavarian origin is unique in the German broadcasting landscape. It is specified by Art. 111a, Paragraph 2, Clause 1 of the Bavarian State Constitution ( Bavarian Constitution [BV]), a provision which owes its existence to a successful referendum in Bavaria in 1972. The Bayerische Landeszentrale für neue Medien (BLM), an institution with legal capacity under public law , assumes public responsibility and public-law sponsorship (Art. 2 Para. 1 BayMG). This model, which is based on a constitutional prohibition of “real” private radio, triggers numerous legal questions that have led to a comparatively large number of legal disputes over the past 25 years.

Relationship to the State Treaty on Broadcasting

Norm hierarchy

The Interstate Broadcasting Treaty (RStV) is initially, as the term “ State Treaty ” suggests, a contract concluded between states, in this case the federal states. Its regulations are given legal force with direct effect vis-à-vis the citizens through approval laws or approval resolutions of the state parliaments . The interstate broadcasting treaty concluded between all federal states thus contains uniform federal state law. As a state law, it is at the same standard hierarchical level as the BayMG. According to this traditional view of the equality of international treaty and other simple national law, which probably still prevails, the more specific would take precedence over the more general and the more recent over the older law. According to this view, more recent state law contrary to the state treaty would trigger claims of the state contracting parties against each other, but would not call into question the validity of the simple state law contrary to state treaty. In the more recent legal literature, however, there are increasing supporters of a norm-hierarchical upgrading of state treaty state law over (simple) state laws. In the dispute over the frequency change from BR-Klassik and BR Puls, the VPRT submitted a legal opinion by the Leipzig broadcasting lawyer Christoph Degenhart, who wants to derive a priority of the international treaty law from the principle of “pacta sunt servanda”. In addition, there is the approach of interpreting the conflict of laws rule in Section 1 (2) RStV, according to which only state law that does not conflict with the provisions of the Interstate Broadcasting Treaty, as a concretization of the constitutional principle of loyalty to the alliance, and not only against older ones, but also against them to enforce recent conflicting state law.

Express regulations

Gap filling

In general, Section 1 (2) of the RStV allows statutory provisions of state law, provided that the RStV itself does not contain any other regulations for the organization and distribution of broadcasting or expressly allows such regulations. A “loophole” in the RStV, which obviously does not contain any regulations on tests or pilot projects, is filled, for example, by Art. 30 BayMG with special provisions for temporary operational tests and pilot projects.

Permitted special regulations

For example, Section 20 (3) RStV for the approval of so-called "small broadcasts" ( facility broadcasting , event broadcasting ) or also Section 46a RStV, which makes advertising easier for local and regional television programs (see Art. 8 (2) BayMG). Section 49, Paragraph 1, Clause 3 of the Interstate Broadcasting Treaty (RStV) does not affect further state law provisions on administrative offenses. In addition, the non-exhaustive list of possible supervisory measures against national broadcasters in Section 38 (2) sentence 2 RStV is understood as such an approval of supplementary state law provisions. In contrast, § 39 RStV prohibits the states involved in the State Treaty from making provisions that differ from §§ 20a to 38 RStV in state laws.

The Bavaria clause

Apart from that, § 64 RStV contains a so-called Bavaria clause, which takes into account the special features of the state constitution. This includes on the one hand that the provisions of the RStV on private broadcasters are (only) applicable to broadcasters under Bavarian law, and on the other hand that the BLM exempts from the restrictions of § 40 RStV for the use of broadcasting license funds (formerly: broadcasting license funds ) is. The BLM may z. B., without being hindered by § 43 sentence 2 RStV, to promote private broadcasting offers in their sponsorship from license fee funds (now: license fee funds). A further exception was made as § 63 sentence 3 a. F. (now Section 64, Clause 3) inserted by the 10th Interstate Broadcasting Treaty of December 19, 2007: Bavaria is exempt from the strict prohibition of political advertising (Section 7, Paragraph 9, Clause 1 of the RStV), which occurs outside of permitted election advertising in pre-election times (cf. . § 42 Abs. 2 RStV) applies. This extension is a popular action decision of the Bavarian Constitutional Court back (BayVerfGH) of 25 May of 2007. The BayVerfGH has reviewed the transformation of the state treaty provision into directly applicable state law against the standards of the BV and declared the corresponding state parliament resolution partially null and void. In the meantime, Article 5, Paragraph 7 of the BayMG, in deviation from Section 7, Paragraph 9, Clause 1 of the Interstate Broadcasting Treaty, permits to a certain extent advertising on the occasion of an approved referendum and a referendum in Bavaria.

Relationship to the Basic Law

The public-law sponsorship model for private broadcasting in Bavaria is compatible with Article 5, Paragraph 1, Sentence 2 of the Basic Law (freedom of broadcasting). The Federal Constitutional Court (BVerfG) only corrected the case law of the BayVerfGH, which did not grant the private providers the protection of the fundamental right of freedom of broadcasting under Bavarian media law.

Relationship to antitrust law

In principle, antitrust law and media law have different regulatory areas and must be applied side by side. But there are overlaps. Until the Amendment Act of 12 July 2016 (GVBl. P. 159) came into force, the BayMG contained e.g. B. Regulations on the cooperation of broadcasters (see Art. 25 Para. 4 Clause 4 BayMG old version), which could come into conflict with antitrust regulations; the withdrawn optional provision in Art. 25, Paragraph 3, Clause 2 BayMG new version considerably reduces the potential for conflict. A premature application of Art. 31 GG (federal law breaks state law) appears inappropriate for conflict resolution, because it cannot apply to federal law that is incompetent. In this context, the fact that the Länder have exclusive legislative competence for broadcasting is weighted. The federal legislature is not allowed to shape the positive broadcasting regulations for reasons of competence. He may not use any other competence titles, e.g. B. for commercial law (Art. 74, Paragraph 1, No. 11 GG) or the prevention of the abuse of economic power (Art. 74, Paragraph 1, No. 16 GG). As part of its exclusive responsibility for the organization of the positive broadcasting system of the state legislature qua ancillary competence authorized mitzuregeln such commercial law issues that have an inseparable connection with the broadcasting organization. In the event of a conflict with the general antitrust provisions, such as a more specific law, the competition rules of broadcasting law, which are necessary for broadcast organizational reasons, have priority. In this area, the federal law cannot derogate the state legal norm for reasons of competence.

Relationship to European law

Broadcasting law is increasingly determined by European law. Directives such as those on audiovisual media services (AVMSD Directive) must be implemented in national law in order to be valid. They regularly find their way to Bavaria via the RStV and then (already) apply immediately.

The public law sponsorship reservation

The interesting question is whether the legal form monopoly (broadcasting event exclusively under public law) is compatible with Art. 10 ECHR . The ECHR has the status of a federal law in the Federal Republic of Germany and takes precedence over Bavarian state law. The fact, discussed in the previous section on antitrust law, that the federal legislature, according to the distribution of competences in the Basic Law, is not authorized to shape the broadcasting regulations, does not apply to Article 31 of the Basic Law (federal law breaks state law) in the relationship between the ECHR and the BV and the BayMG Meaning. However, contrary to the view of Stefan Lorenzmeier, there is no incompatibility of Art. 111a Para. 2 Clause 1 BV with Art. 10 ECHR. The decisive factor for compliance with European law is the fact that the Bavarian broadcasters can participate in the broadcasting organized by the BLM with basic legal protection. In this way, the Bavarian model differs significantly from the situation on which the judgment of the European Court of Human Rights ( ECHR ) of November 24, 1993 in the case of Informationsverein Lentia v. Republic of Austria was based.

Registered office in Germany as a prerequisite for approval

Until August 31, 2016, Art. 26 Paragraph 1 Clause 1 No. 1 BayMG stipulated a seat in Germany as a prerequisite for approval. Since the Amendment Act of July 12, 2016 came into force, the restriction has been dropped; since then, a seat in another EU member state or another signatory to the Agreement on the European Economic Area has been sufficient. Conceivable conflicts with European law are thus resolved.

Local reference of the provider to the broadcast area

The previous rule priority of providers with a local reference to the broadcasting area (Art. 25 Para. 4 Clause 3 BayMG old version) has also been defused. The local reference to the broadcasting area is now only one of several selection criteria and is no longer related to the applicant, but to the offer (Art. 26, Paragraph 1, Clause 3 BayMG new version). This cannot be seen as a hindrance to the free movement of services. However, the previous rule of preferential consideration of locally rooted applicants should ensure the qualified fulfillment of the information task, especially by local, regional and nationwide providers. Even then, it offered sufficient flexibility in the practical implementation in order to avoid results contrary to European law, especially since the local reference as a legal presumption of particular factual proximity of an applicant was not absolute and was subordinate to the requirement of safeguarding pluralism. The new regulation eliminated any remaining concerns about the conformity of the provision with European law.

Funding from state budget funds

Finally, the funding of local and regional television providers from the budget of the Free State of Bavaria raises questions of state aid law. The funding benefits providers who, on the basis of Art. 23 BayMG, are entrusted with a special program service to meet local / regional information interests. Without contradicting the constitutionally direct general basic service mandate of the fee-financed public broadcasters, it can be stated that the program performance of the local / regional television providers in Bavaria fulfills a local basic service function. This means that they are given a service of general economic interest, in the German nomenclature under administrative law: a service of general interest. As long as there is no overcompensation for the effort required to fulfill the task, funding from state budget funds is harmless under European law. From a state aid point of view, it does not matter whether the state grants aid to public or private broadcasters. Entrusting a clearly defined service of general economic interest is crucial.

Outline of the law

first section

General rules

Art. 1 Scope of application, definitions

Art. 2 Sponsorship under public law, organization

Art. 3 programs

Art. 4 Balance of the overall offer, diversity of opinion

Art. 5 Program principles, opinion polls, third-party broadcasting rights

Art. 6 Inadmissible programs, protection of minors

Art. 7 Short reports, broadcast of major events

Art. 8 Advertising, teleshopping

Art. 9 Sponsoring, competitions

second part

Bavarian state headquarters for new media

Art. 10 Legal form, organs

Art. 11 Duties

Art. 12 Media Council

Art. 13 Members of the Media Council

Art. 14 Board of Directors

Art. 15 President

Art. 16 Orders

Art. 17 Right of appeal

Art. 18 Counter-notification

Art. 19 Legal supervision

Art. 20 Data protection

Art. 21 Financing, housekeeping, auditing

Art. 22 Costs

Third section

Promotion of local and regional television offers, organization and approval of radio programs

Art. 23 Promotion of local and regional television offers

Art. 24 Provider

Art. 25 Content of offers, organizational procedure

Art. 26 Approval of the offer

Art. 27 TV text, radio text

Art. 28 Program changes

Art. 29 Duty to provide information, record keeping, archiving

Fourth section

Pilot projects, operational trials

Art. 30 Pilot projects, operational trials

Fifth section

Allocation of technical transmission capacities

Art. 31 Transmission capacities used

Art. 32 Allocation of new transmission capacities

Sixth section

Cable systems

Art. 33 Operation of cable systems

Art. 34 Ensuring diversity in cable systems

Art. 35 Retransmission

Art. 36 Channel allocation in broadband cable networks

Seventh section

Transitional and final provisions

Art. 37 Criminal provisions, administrative offenses

Art. 38 Limitation period

Art. 39 No suspensive effect

Art. 40 Transitional provision

Art. 41 Entry into force, expiry

literature

Web links

Footnotes and references

  1. ↑ to Bay.VerfGH , decision of 21 November 1986 VerfGHE 39, 96 (Vf. 5-VII-85, Vf. 8-VII-85, Vf. 14-VII-85, Vf. 15-IV-85 and Vf. 16-VIII-85), GVBl. P. 389
  2. ↑ Drs. 7/3069
  3. ↑ Rupert Stettner: The jurisprudence of the constitutional and administrative courts on the Bavarian Media Testing and Development Act (MEG), ZUM 1992, 456 ff .; ders., The case law of the constitutional and administrative courts on the Bavarian Media Act (BayMG) 1992–2000, ZUM 2001, 903 ff .; ders., The case law of the constitutional and administrative courts on Bavarian media law 2000–2010. BLM-e-book, Volume 1, 2012, http://www.blm.de/blm_ebooks/1_12/index.htm
  4. ↑ Holznagel, in Spindler, Gerald / Schuster, Fabian, Law of Electronic Media, 3rd edition 2015, RStV, § 1 Rn. 5; Martini, in Gersdorf, Hubertus / Paal, Boris, Information and Media Law, 2014, RStV, § 1 Rn. 19f.
  5. ↑ z. B. Vesting, in Hahn, Werner / Vesting, Thomas, Beck'scher Commentary on Broadcasting Law, 3rd edition 2012, RStV, § 1 Rn. 40.
  6. ↑ S. Merkur online
  7. ^ Degenhart report , p. 24 f.
  8. ↑ Roland Bornemann, Rundfunkpolitik im Spiegel des Rechts, K&R 2014, 488
  9. ↑ Reinhard Hartstein / Wolf-Dieter Ring / Johannes Kreile / Dieter Dörr / Rupert Stettner , Mark D. Cole / Eva Ellen Wagner, Heidelberg Commentary on the Rundfunkstaatsvertrag, Jugendmedienschutz-Staatsvertrag, loose-leaf commentary, status: May 2017, Section 38 marginal no. 8th
  10. ↑ Roland Bornemann / Christian von Coelln / Stefan Hepach / Gero Himmelsbach / Jörg Gundel: Bavarian Media Law, loose-leaf commentary, status. 42. Erg.lfg. 2017, Art. 11 para. 17th
  11. ↑ VerfGH n. F. 60, 131 = BayVBl. 2008, 302
  12. ↑ BVerfGE 97, 298 ff. - extra radio
  13. ↑ st. Rspr. Since BVerfGE 12, 205 (225).
  14. ↑ The legal figure of the annex competence was developed in order to establish a federal competence - outside of the express allocation of competence in the Basic Law. At first glance, the countries that are all responsible under Article 70 of the Basic Law do not seem to need such a competence. However, the legal figure of an annex competence also has its justification on the state side for "reverse exceptions" in federal competences according to the individual titles of the GG.
  15. ↑ Roland Bornemann / Christian von Coelln / Stefan Hepach / Gero Himmelsbach / Nikolaus Lörz: BayMG, as of: 39. Erg. 2016, Art. 25 para. 66 mw N.
  16. ↑ For the overall topic, see Herbert Bethge, The constitutional status of the BLM, 2nd edition 2011, p. 80 ff.
  17. ↑ Stefan Lorenzmeier: The legality of local broadcasting financing in the Free State of Bavaria, expert opinion ( Memento of the original from March 4, 2016 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF; 828 kB) on behalf of the Bündnis 90 / Die Grünen parliamentary group in the Bavarian State Parliament, 2011 @1@ 2Template: Webachiv / IABot / www.gruene-fraktion-bayern.de
  18. ↑ Peter M. Huber : The Bavarian Broadcasting Model in the Light of Its Constitutional and Union Law Framework, BayVBl. 2004, 609 (616).
  19. ↑ Printed in AfP 1994, 281 and EuGRZ 1994, 549. To the English judgment text (PDF; 28 kB)
  20. ↑ Roland Bornemann / Christian von Coelln / Stefan Hepach / Gero Himmelsbach / Nikolaus Lörz: BayMG, 39th EL 2016, Art. 25 Rn. 45 f.
  21. ↑ Roland Bornemann / Christian von Coelln / Stefan Hepach / Gero Himmelsbach / Jörg Gundel, BayMG, 43. EL 2017, Art. 26 Rn. 44
  22. ↑ Cf. Joachim Wieland : Local broadcast financing in Bavaria. Constitutional and European legal framework conditions for state financial responsibility, Baden-Baden 2009, p. 61 ff.
  23. ↑ Jörg Gundel , The Framework Specifications of EU State Aid Law for the Design of Bavarian Local Radio Financing, BLM-e-book, Vol. 2 , 2012, p. 40.