Media law

This article was entered in the editorial right for improvement due to formal or factual deficiencies in quality assurance . This is done in order to bring the quality of articles from the subject area law to an acceptable level. Help to eliminate the shortcomings in this article and take part in the discussion ! ( + ) Reason: Section "European regulations" is completely out of date; the EGV no longer exists and neither does the television directive. European media law also consists of more standards than just the AVMS Directive and the E-Commerce Directive. - 91.39.62.202 22:05, 18 Sep 2011 (CEST)

Media law deals with the regulations of private and public (universal) information and communication and thus plays into the legal sub-areas of public law , civil law and criminal law . Media law is therefore a " cross-sectional matter ". Media law can be subdivided into content-specific areas of law, such as copyright law, which are usually assigned to civil law, and broadcast-specific areas of law, such as telecommunications law and broadcasting law, which are mainly assigned to administrative law.

Classic subjects of media law are the press , radio (radio and television) and film . With the advent of new media, the areas of multimedia and internet have been added.

The regulatory objectives of media law are to guarantee a generally accessible communication infrastructure, safeguarding diversity of opinion , protecting media users ( recipients ), protecting data and minors, but also protecting intellectual property . The use and usability of media transmitted content is therefore legally regulated.

In contrast, telecommunications law primarily only regulates the technical side of the transmission of content. However, both areas are closely interlinked, especially in the multimedia sector, and influence one another.

European regulations

The European Community originally had no express competence in the field of the media. However, under the impression of the development of multimedia and the Internet, the Member States have recognized that it is precisely many of the new media that require a European order in the media sector. In December 1997 , the EU Commission therefore published a green paper on the convergence of telecommunications, media and information technologies , in which it set out framework regulations for the converging media sectors. Since the regulatory competence of the EC only includes those areas that are necessary to achieve the objectives of the EC Treaty ( Art. 2 and Art. 3 EC Treaty ), European regulations were essentially based on the freedom to provide services ( Art. 49 EC Treaty), the requirement based on the approximation of laws according to Art. 47 and Art. 55 EGV, but also on Art. 86 (3) EGV (for the abolition of monopolies in the telecommunications sector).

In Germany, the competence of the EC for regulations in the media sector was heavily criticized. The EC's attitude towards the media, especially in the field of broadcasting, was seen as too economically oriented. In connection with the so-called 9th broadcast judgment , for example, it was feared that the cultural significance of the media and the German federal structure of competencies that culture assigns to the countries would be undermined by EC media law that viewed media only as an economic service would be. The ECJ mediated between the positions by stating that the EC was authorized to make regulations on cross-border media services, but that the member states could restrict the freedom to provide services “for imperative reasons of the common good”. Later, with the cultural article in Art. 151 of the EC Treaty, the preservation and promotion of cultural diversity was also laid down as a principle under European law.

In addition, the importance of Article 87 of the EC Treaty, the protective provision against aid that distorts competition in relation to the financing of public broadcasting in Germany, is the subject of controversial discussion.

As a secondary law, Directive 89/552 / EEC (TV Directive) (Directive 89/552 / EEC, revised version: 97/36 / EC) and the EC E-Commerce Directive (Directive 2000/31 / EC) has been issued.

Constitutional foundations in Germany

The constitutional basis for the right of the media is formed by the so-called freedom of communication: freedom of expression ( Art. 5 Para. 1, S. 1, 1st Hs. GG), freedom of recipients (freedom of information) (Art. 5 Para. 1, S. 1, 2 . Hs. GG), broadcasting and press freedom (Art. 5 Abs. 1, S. 2 GG). In addition, there is freedom of art (Article 5 (3) GG) and telecommunications secrecy ( Article 10 (1) GG). Although fundamental rights are primarily to be understood as the citizens' subjective rights of defense against the state, there is also an objective dimension as a mandate to the state to create suitable framework conditions for the development of fundamental rights. For the freedom of communication, this means, among other things, providing for a sufficient infrastructure so that citizens can actually realize their basic communication rights.

The legislative power is in accordance with Art. 30 GG in conjunction with Art. 70 para. 1 of the Basic Law for radio and press principle with the Länder. This was confirmed by the 1st broadcast judgment by the Federal Constitutional Court (“ Deutschland-Fernsehen-GmbH ”). Until the federalism reform, the federal government had a framework legislative competence based on Article 75, Paragraph 1, No. 2 of the Basic Law for the legal relations of the press , but this was never used. After the abolition of Article 75 GG through the abolition of the framework legislative competence , the states now have the right to enact laws in the area of the press, as before, but the federal government has since then been unable to provide a legal framework for this.

For telecommunications , copyright , industrial property protection and publishing law , however, the federal government has exclusive legislative competence under Article 73 of the Basic Law.

Basic legal principles in Germany

Press, publishing, radio

The press law is based on the press laws of the federal states. For the publishing rights that are the Copyright Act , the Publishing Act and the right of collecting societies (eg. As VG Wort ) is important. In the area of broadcasting law , the federal states conclude state treaties in order to guarantee a nationwide uniform regulation, including, above all, the State Broadcasting Agreement (RStV), which standardizes general requirements for public and private broadcasting. The State Treaty on Broadcasting Fees and the State Treaty on Broadcasting Financing ensure the financing of public broadcasting. In addition, there are other international treaties as the legal basis for public broadcasters, such as B. the NDR State Treaty or the ZDF State Treaty . In addition to the RStV, private broadcasting is based on the respective state media laws of the states.

Fine arts, photography, film, music

Copyright is particularly relevant for the work of artists in these areas . The legal basis is the Copyright Act (UrhG) and the Art Copyright Act (KUG). The various collecting societies are involved in the exploitation : GEMA and VG Musikedition für Musikwerke, VG Bild-Kunst for Bildwerke, the GVL for the exercise of ancillary copyrights and many more. Trademark law , patent law , utility model and design protection and competition law are also important for the exercise and protection of ancillary copyrights , but these are not part of media law in the narrower sense (this area is sometimes also referred to as "green law", according to the color of the cover the relevant magazine GRUR in this area.)

Internet and multimedia

The Internet law is an overarching legal matter, which makes use of various legal provisions of the federal and state governments. In order to introduce multimedia legislation, the Information and Communication Services Act (IuKDG) was passed in 1997 , which introduced three new federal laws: the Teleservices Act (TDG), the Teleservices Data Protection Act (TDDSG) and the Signature Act to regulate the digital signature. In addition to the TDG the covenant, which only Teleservices was, was by the countries for the media services of the Media Services Treaty (MDStV) closed. In terms of content, TDG and MDStV were relatively similar and the demarcation between teleservice and media service was therefore blurred. The increasing media convergence and the endeavor to increase legal certainty led to a reform in 2007: The Teledienstegesetz was replaced by the Telemediengesetz of the federal government and regulations of the Mediendienst-Staatsvertrag in the Telemedien section (Sections 54-61 RStV) of the State Treaty for Broadcasting and telemedia of the federal states transferred. The previous media services and teleservices have been combined into what are known as telemedia . The term telemedia was first used in 2003 in the State Treaty on Youth Media Protection (JMStV) of the federal states. This interstate treaty contains follow-up regulations to earlier youth protection provisions in the interstate broadcasting treaty and the interstate media services treaty. It is intended to set minimum standards for the protection of minors, which are monitored by the Commission for the Protection of Minors in the Media (KJM).

The increasing use of meta media such as search engines or social networks that access and publish the content of primary media leads to new questions of copyright and liability law. The Network Enforcement Act (NetzDG) of 2017 tries to give an answer to the latter ,

Due to the rapid, sometimes unpredictable technical and content-related advancement in the field of media law, the existing laws and international treaties are often insufficiently designed for assessing new issues. Therefore, the media law is strong of so-called fall or case law marked (case law). An overview of media law decisions can be found here .

Media regulation

The market access of media companies , their organization and financing, as well as the supervision of the activities of media companies form the area of media regulation.

Media law

For media business law include media law, media antitrust law , media competition law , advertising law , media trade law and copyright law .

Civil media law

Civil media law is understood to mean the protection of legal interests, the binding of the mass media to certain obligations and liability law.

The protected legal interests include general personal rights , but also special personal rights such as the right to one's own image , the protection of honor , the right to one's own name , the right to the company .

In their activities, the media are bound by journalistic due diligence, which also specifies the standard of liability in individual cases. Compliance with the duty of care is essential, especially when reporting suspicions.

In principle, the author himself is liable. When it comes to the liability of the media for their own or third-party content, the liability of the distributors also plays an important role. There are also various liability privileges, e.g. B. in § 13 Abs. 6 Nr. 1 UWG and in § 5 TDG and § 5 MDStV .

Various civil legal remedies are made available to those affected by an inadmissible statement in the reporting in order to enforce their rights or the protection of their legal interests against the media. Against impermissible opinions expressed a can injunction , a claim for compensation or a claim for compensation in money exist. Against unacceptable factual allegations in addition are also entitled to rectification and of reply into consideration.

Media employment law

Special labor law regulations apply to employees in mass media companies with regard to protection against tendencies . This applies to the individual employment relationship as well as co-determination in the company, collective agreements and industrial disputes .

Criminal media law

In the area of criminal law , too, there are norms specially tailored to the activities of the media. Among them is v. a. § 193 StGB, which intervenes when safeguarding legitimate interests as a justification for the offense . In addition, there are criminal regulations in the state press laws ( e.g. § 20 b.-w. LPresseG).

In criminal procedure law , the journalistic right to refuse to testify ( § 53 StPO, § 383 ZPO) and prohibitions on confiscation and search (§ § 94 ff., 111, 111n, 102 ff. StPO) apply.

Constitutional basis in Switzerland

In Switzerland, media law is basically regulated in Art. 93 of the Federal Constitution. Among other things, this stipulates that the media should report true to the facts. In addition, the public service media must promote the diversity of opinions and the political cohesion of the multilingual country.

Institutions

Various institutions are involved in the development of media law. These include:

institution	task
Federal Government Commissioner for Culture and the Media	Legislation in the Cabinet
Federal Network Agency	Allocation of frequencies and supervision
National inspecting authority for youth harming media	Issue of bans under the Youth Protection Act
Commission for Youth Media Protection (KJM)	Control over media according to the State Treaty on Youth Media Protection
Commission to determine the concentration in the media sector (KEK)	Assessment of the concentration in the media area
Commission for Approval and Supervision (ZAK)	Joint committee of all state media authorities
Joint office of the state media authorities in Berlin	Mediation and coordination between the state media authorities
State media authorities of the federal states	Supervision of programs on television and radio

The respective state media authorities work in the federal states:

state	State institution
Baden-Württemberg	State Office for Communication Baden-Württemberg
Bavaria	Bavarian state headquarters for new media
Berlin and Brandenburg	Medienanstalt Berlin-Brandenburg
Bremen	Bremen State Media Authority
Hamburg and Schleswig-Holstein	Media Authority Hamburg / Schleswig-Holstein
Hesse	Hessian state authority for private broadcasting and new media
Mecklenburg-Western Pomerania	Mecklenburg-Western Pomerania Media Authority
Lower Saxony	Lower Saxony State Media Authority
North Rhine-Westphalia	State Institute for Media North Rhine-Westphalia
Rhineland-Palatinate	State headquarters for media and communication
Saarland	State Media Authority Saarland
Saxony	Saxon State Authority for Private Broadcasting and New Media
Saxony-Anhalt	Media Authority Saxony-Anhalt
Thuringia	Thuringian State Media Authority

literature

Textbooks:

Udo Branahl : Media Law, an Introduction. 6th edition. VS Verlag, Wiesbaden 2009, ISBN 978-3-531-16558-5 .
Dieter Dörr , Rolf Schwartmann: Media law . Müller, Heidelberg 2006, ISBN 3-8114-3203-6 .
Frank Fechner: Media Law. Textbook on all media law with a special focus on the press, radio and multimedia. 9th edition. Mohr Siebeck 2008, ISBN 978-3-8252-2154-6 .
Günter Herrmann : Broadcasting Law. TV and radio with new media. Short legal textbook for study and practice. 2nd Edition. Beck, Munich 2004, ISBN 3-406-51976-8 .
Thomas Hoeren : Internet law . Script for free download (new every 6 months) at http://www.uni-muenster.de/Jura.itm/hoeren/ rubric materials
Marian Paschke: Media Law. 2nd Edition. Springer, Berlin 2001, ISBN 3-540-67974-X .
Jens Petersen : Media Law. 5th edition. Beck, Munich 2010, ISBN 978-3-406-60955-8 .

Comments:

Wolfgang Büscher, Stefan Dittmer, Peter Schiwy (eds.): Commercial legal protection, copyright, media law . Carl Heymanns, Munich 2008, ISBN 978-3-452-26678-1 .
Gerald Spindler , Fabian Schuster: Law of the Electronic Media. Comment . Munich 2008, ISBN 978-3-406-54629-7 .

Manuals and dictionaries:

Artur-Axel Wandtke : Media Law . Practical Guide. Berlin 2008, ISBN 978-3-89949-422-8 .
Peter Schiwy (Ed.): Media Law. Lexicon for practice and science. 4th edition. Heymann, Cologne 2006, ISBN 3-472-06612-1 .
Rolf Schwartmann: Practical Guide to Media, IT and Copyright. 2nd Edition. CF Müller, Heidelberg 2011, ISBN 978-3-8114-3820-0 .
Fechner / Mayer (ed.): Media law. Collection of rules. 10th edition. CF Müller, Heidelberg 2014
Endress Wanckel: Photo and Image Rights, 5th, fully updated edition 2017, CH Beck, Munich, ISBN 978-3-406-71222-7 .