Should media be censored
What the media are allowed to do
The media should be organized independently of the state
If the media is to do justice to its public task, the media system must be designed in such a way that this goal can be achieved. The free formation of public opinion presupposes that the different views represented by the people also appear in the "media concert" (journalistic diversity). Criticism and control of the behavior of state organs and holders of political offices can only be made by the media that are not controlled by them themselves.
That is why the Federal Constitutional Court (BVerfG) demands media regulations in which the media are organized independently of state influence (freedom of the state). The media system consists of four elements: the print media (newspapers and magazines), the Internet, the broadcasters and private broadcasters.
Few guidelines for the press and the internet
The print media and the Internet are subject to the slightest government regulations: Nobody needs a government license to work as a journalist, publish a newspaper or start and operate a blog. The press laws of the federal states primarily contain regulatory provisions that facilitate the prosecution of legal violations.
On the one hand, this is served by the obligation to identify the publisher or editor, the printer and the "responsible editor" in an "imprint", who is responsible for ensuring that nothing criminal is published in the sheet. This must, for example, prevent insults from being spread or secrets being revealed.
In addition, they oblige the newspaper to mark advertisements as such and to print a "reply" in which someone claims that what has been said about him in the newspaper is untrue. On the other hand, they give the media the right to request the authorities to provide the information they need to properly inform their audience.
Similar regulations for telemedia can be found in the State Broadcasting Treaty (§§ 54 "58 RstV [duty to provide information]), on which the broadcasting and media laws of the federal states are based.
Lots of rules for broadcasting
The legislature has covered broadcasting with a very dense network of regulations. In the dual system of public broadcasters and private broadcasters, the public broadcasters have to ensure the basic provision of information to the population and receive broadcasting fees for this.
In order to protect the private broadcasters, which (have to) finance themselves entirely from advertising income, against overwhelming competition from the public broadcasters, the German federal states have restricted the range of public broadcasting services at the request of the European Commission. This applies to the type and quantity of its programs as well as to its Internet offering, advertising and commercial activities.
On the other hand, the BVerfG has ensured with its license fee ruling that the state is not allowed to dry up the broadcasters financially: Prime ministers and state parliaments are not allowed to decide at will about the amount of the license fee. Rather, an independent commission (KEF) determines the financial needs of the broadcasters. The state parliaments must take their findings into account when setting the license fee.
Private broadcasters require a license, which is issued by the responsible state media authority. This also supervises the broadcasters approved by it. The Commission for the Determination of Concentration in the Media (KEK) monitors the safeguarding of the diversity of opinion in its programs. It can make broadcasts to channels with a market share of 30 percent or more, which ensure the variety of programs. For example, the broadcaster can set up a program advisory board that watches over the "inner" diversity of the program, or set up program windows that are filled by independent program providers.
The media must be able to expose grievances
Almost all media are financed at least in part by advertising. This must be separated from the editorial part so that it becomes clear to the public which articles they can trust because they were produced by an independent editorial team and which articles unilaterally represent the interests of the person who has paid for their publication.
It therefore applies to all media that advertising must be readily recognizable as such and must not influence the content of the editorial section. This also applies in the event that the producers of television programs receive money for showing a branded product ("product placement").
Freedom of expression and freedom of the media end where the rights of others are violated. On the other hand, these rights must not be extended to such an extent that the media can no longer perform their public tasks.
The media must have the opportunity to expose grievances and debate how they can be remedied. For example, they can criticize the behavior of politicians, authorities, business enterprises or celebrities such as football players. They have to accept the criticism even if it damages their public image or disrupts their business.
Right to your own picture
In order to determine the limits of media freedom, a middle ground has to be found that adequately takes into account the legitimate information interests of the public on the one hand and the protection interests of those affected on the other. For example, the media must not make false claims that damage another person's reputation.
In contrast, expressions of opinion in political disputes are comprehensively protected. For this reason, a politician, for example, cannot successfully defend himself against critical, even exaggeratedly negative, polemical or sarcastic statements as long as there is a dispute on the matter.
Photos of people may only be published with the consent of the person depicted (right to own picture). However, it is permitted to distribute images of people who are permanently in the public eye because of their social position or who have drawn public interest to themselves through their own behavior, so-called persons of contemporary history.
However, photos that show the private life of such persons may only be published if they are important for the formation of public opinion. Children enjoy special protection. Without parental permission, your pictures may only be published if they have appeared in public (with the consent of the parents).
Caroline von Hannover successfully defended herself against the publication of pictures that she showed riding, skiing, playing tennis or shopping. In its "Caroline judgment", the European Court of Justice assessed them as an impermissible invasion of their privacy, which only satisfies the curiosity of the public, but cannot be seen as a contribution to a debate of general social interest.
In contrast, according to the Federal Court of Justice, a report that showed Caroline and her family on a skiing holiday while their father was dying was not objectionable.
Weighing private and public interests
In principle, everyone has the right to decide for themselves which information about their personal life may be collected and disseminated by others (data protection).
This right is also limited by the public interest in information: If the public has a legitimate interest in being informed about the behavior of the person concerned, he must accept a corresponding report.
That is why, for example, a minister's illness may be reported if it prevents him from exercising his office. Anyone who publicly advocates respect for certain ethical principles must accept the fact that they themselves (in their private sphere) are violating these principles.
It is also permissible to publish examples of exorbitantly high incomes for professional athletes or business leaders in a report that critically examines the distribution of income in Germany.
If, in individual cases, there is a dispute over the question of whether a certain publication is permissible, the competent court has to "weigh up" the interests involved. Since the delimitation of fundamental rights is up to the decision, the losing party always has the option of filing a constitutional complaint with the Federal Constitutional Court.
With the claim that the decision of the BVerfG violates European law, the person concerned can finally appeal to the European Court of Justice or the European Court of Human Rights.
Source: Federal Agency for Civic Education (bpb)
With kind permission of the bpb and the authors
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