Broadcasting freedom

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In Germany, the freedom of broadcasting one in Art. 5 para. 1 sentence 2 Basic Law guaranteed under (GG) fundamental right that protects all the activities associated with the broadcast event. Together with freedom of the press , freedom of information and freedom of expression, it is one of the freedoms of communication that protect the entire process of individual and public opinion-forming. Basic regulations of broadcasting law , which specify the constitutional requirements, can be found in particular in the Interstate Broadcasting Treaty and in theState broadcasting laws and state media laws of the federal states.

Protection area

Bearer of the fundamental right

Broadcasters can invoke the freedom to broadcast . This includes both public broadcasters and private broadcasters.

Public broadcasters

This possibility was controversial in the case of public broadcasters , as the fundamental rights do not apply to legal entities under public law. However, the public service broadcasters are a typical exception here: They are directly assigned to the area of ​​life protected by the fundamental right and can therefore also invoke freedom of broadcasting. This also marks the limit for public broadcasters: In the areas that no longer belong to the specific area of freedom of broadcasting (for example the protection of property from Article 14 of the Basic Law or the general freedom of action from Article 2, Paragraph 1 of the Basic Law ), the public service broadcasters cannot invoke the fundamental rights.

Private broadcasters

For private broadcasters , freedom of broadcasting is also a right of defense against state interference. It is available to anyone who organizes radio programs, regardless of its legal form or commercial direction. The starting point is broadcasting, although applicants for approval can also refer to this basic right in the approval procedure before the state media authorities , because the risk of the state influencing programming is particularly high when selecting applicants.

Broadcasters

Broadcasters are protected from the state, but not from their superiors. Whether there is an “inner freedom of broadcasting” is interpreted differently. In 2010 the question became virulent as to whether the suppliers of program parts could invoke the freedom of broadcasting against supervisory measures that are directed at the broadcaster and affect the content they deliver. A decision by the Federal Constitutional Court on this question is expected shortly.

Protected behavior

The freedom of broadcasting includes all presentations in word , sound and image, reporting, expression of opinion, but also broadcasts with an entertaining character. For this purpose, all activities are protected that serve information gathering, program design - in this regard, the term program freedom is used as a special characteristic or even the core of broadcasting freedom - up to the broadcasting and distribution of the program. The selection of staff as well as financial and organizational issues are also protected if there can be repercussions on the program design. What is to be understood by broadcasting cannot be conclusively determined; the Federal Constitutional Court sees a dynamic broadcasting term in this context: “ The term 'broadcasting' used in Article 5, Paragraph 1, Sentence 2 of the Basic Law cannot be captured in a definition that is valid once and for all. “In any case, it is a question of the transmission of thought content , which is addressed to the general public and takes place through electromagnetic waves. The broad impact, topicality and suggestive power of broadcasting is also essential . The core area of ​​broadcasting freedom is the broadcaster's program autonomy, i.e. his freedom to decide for himself about the content and scope of his program.

Serving freedom

In contrast to the conception of fundamental rights as liberal defensive rights , the Federal Constitutional Court sees freedom of broadcasting as a freedom of service. Under the conditions of mass communication, it serves the task of guaranteeing free and comprehensive opinion-forming through broadcasting. This opinion is only possible when the radio is not unilaterally handed over to the state or social group, ie the distance from the state of broadcasting is secured. The legislature has to guarantee this; it has to ensure the diversity of opinions and comprehensive information through positive broadcasting regulations. This task are the countries with the Broadcasting Treaty by which establishes the dual broadcasting system and to the public broadcasting primary care ensures, but next to allow private broadcasting.

Interference with the freedom of broadcasting

The subjective-legal dimension of freedom of broadcasting as a right of defense offers protection against state interference in program autonomy, but the objective-legal dimension of freedom of broadcasting requires the state to structure it through laws.

The subjective side: freedom of broadcasting as a right of defense

Both public broadcasters and private broadcasters have their own subjective right to their program autonomy from broadcasting freedom.

Laws that interfere with this freedom (interference laws) are intended to protect another basic right (e.g. general personal rights) by restricting the freedom of broadcasting . In terms of content, they must be measured against the standard of Article 5, Paragraph 2 of the Basic Law, i.e. general laws (laws that do not restrict a certain opinion, but rather serve to protect a legal interest that needs to be protected) or the protection of youth or honor serve. Here there is a balance between freedom of broadcasting and the conflicting fundamental right, whereby the conflicting fundamental right must also be interpreted in the light of broadcasting freedom (theory of interaction ). In addition, laws of intervention must be proportionate .

The objective side: Broadcasting freedom as a design reservation

The public and individual opinion-forming - a constitutive part of democracy - can only be exercised by the recipients if the state ensures the basic supply with a diverse program through legal framework conditions. According to the Federal Constitutional Court, the state is obliged to create a positive order through laws that regulate the essential requirements for diversity, programming, market access, supervision and financing of broadcasting. Such a law defines the freedom of broadcasting (Ausgestaltungsgesetz). The broadcasting freedom requirements for the legislature and broadcasters were formulated and specified more precisely by the Federal Constitutional Court in its broadcasting judgments. A draft law must at least promote the goal of guaranteeing free individual and public opinion-forming and the freedom of the state of broadcasting. The most important details of the Federal Constitutional Court concern the basic supply of the population through public broadcasting, its guarantee of existence and development and the functional financing as well as the requirements of the dual broadcasting system .

primary care

In principle, freedom from broadcasting guarantees basic service . This must therefore be secured by the state. Basic services include providing the population with radio programs, including information , education , entertainment and culture , whereby diversity of opinion must be ensured.

Guarantee of the existence and development of public service broadcasting

Because of the limited range of programs and breadth of private broadcasting, guaranteeing the universal service is the task and the basis of legitimation for public broadcasting. For this reason, the legislature must set up public broadcasting and secure the necessary (financial) resources. It would not be compatible with this if public service broadcasting were to be frozen in its existence. The basic service mandate can only be fulfilled if public broadcasting is also secure in its development.

Dual broadcasting regulations

If the basic service is guaranteed by the public broadcasters, private broadcasters can also act. The Federal Constitutional Court allowed this from the start. In the 3rd broadcast judgment it stated explicitly: “ The Basic Law prescribes [the legislature] no specific form of broadcasting organization; it is only important that free, comprehensive and truthful opinion [...] ensure [he must ensure] that broadcasting is not shipped one or various groups, which all the eligible social groups in the overall program to speak and that the freedom of reporting remains unaffected. "As long as these requirements are met within the framework of the basic service by the public broadcasters, lower requirements can be placed on the private broadcasters, but the legislature must make guiding principles binding that guarantee a" minimum level of content- related balance, objectivity and mutual respect ". The program principles are to be understood against this background (cf. § 3 and § 41 RStV). The legislature has opted for a combination of internally pluralistically organized public broadcasters and external plurality through a large number of private broadcasters.

literature

Individual evidence

  1. ↑ Hartstein / Ring / Kreile / Dörr / Stettner RStV, before Section 11, marginal no. 43.
  2. ↑ See BVerfGE 31, 314 322 - 2nd broadcast judgment (sales tax).
  3. ↑ BVerfGE 95, 220 234 - Obligation to record
  4. ↑ BVerfGE 97, 298 312 - 11th broadcasting judgment (Extra-Radio Hof).
  5. ↑ Jürgen Schröder-Jahn: From the freedom of a radio man: the history of the editor's statute for the North German radio. Norddeutscher Rundfunk, Hamburg 2006, ISBN 978-3-00-019992-9 .
  6. ↑ S. the urgent decision of the BVerfG, ZUM 2011, 234; see. also Jörg Gundel, The Legal Status of Broadcasting Program Suppliers in Measures against the Organizer: Constitutional and European Law Issues, ZUM 2011, 881 ff.
  7. ↑ BVerfGE 74, 297 349 - 5th broadcast judgment (Baden-Württemberg decision).
  8. ↑ Fechner Medienrecht, p. 270, Rn. 20th
  9. ↑ BVerfGE 90, 60 86 - 8th broadcasting judgment (broadcasting fees I).
  10. ↑ Fechner decisions p. 339, Hartstein / Ring / Kreile § 11a, Rn. 9.
  11. ↑ BVerfGE 57, 295 320 - 3rd broadcasting judgment (FRAG judgment)
  12. ↑ BVerfGE 57, 295 322 - 3rd broadcasting judgment (FRAG judgment).
  13. ↑ BVerfGE 57, 295 320 - 3rd broadcasting judgment (FRAG judgment).
  14. ↑ BVerfGE 7, 198 209 - Lüth judgment .
  15. ↑ Fechner Medienrecht, p. 278, Rn. 45.
  16. ↑ For a summary cf. Fechner Medienrecht, p. 279, Rn. 50.
  17. ↑ Hartstein / Ring / Kreile / Dörr / Stettner RStV, § 11, Rn. 3.
  18. ↑ BVerfGE 74, 297 325 - 5th broadcast judgment (Baden-Württemberg).
  19. ↑ BVerfGE 83, 238 333 - 6th broadcasting judgment (WDR).
  20. ↑ See BVerfGE 12, 205 262 - 1st broadcast judgment (Deutschland-Fernsehen-GmbH).
  21. ↑ BVerfGE 57, 295 321f. - 3rd broadcasting judgment (FRAG).
  22. ↑ BVerfGE 73, 118 Heading 1b - 4th broadcast judgment (Lower Saxony).
  23. ↑ BVerfGE 57, 295 325 - 3rd broadcasting judgment (FRAG).