The freedom of speech and law of public media

Transcription

Karla Schneider
Sigmaringer Straße 15
50935 Köln
Matr.-Nr.: 3706737
6. Fachsemester
The freedom of speech and law of public
media
Seminararbeit zum rechtsvergleichenden Seminar zu Fragen
des gesamteuropäischen Verfassungsrechts
bei Prof. Dr. A. Nussberger
Wintersemester 2004/05
„rara temporum felicitate, ubi sentire quae velis et quae sentias dicere licet“
(Tacitus)
Appel, Jürgen
Massenmedien in der Zivilgesellschaft
In: Auf dem Wege zur Zivilgesellschaft 3/ 99
Bajka, Zbigniew
Ausländisches Kapital in der polnischen Presse
1999
Bamberger, Heinz Georg
Einführung in das Medienrecht
1986
Bismarck, Hans
Neue Medientechnologien und grundgesetzliche
Kommunikationsverfassung
1982
Banasinski, Cezary/
Das Recht der Rundfunkunternehmen in Polen
Rittler, Robert
2000
Cromme, Franz
Die Programmüberwachung des Rundfunkrates
In: NJW 1985, 351
Dobosz, Izabela
Polnisches Presserecht
1999
Dörr, Dieter
Der Einfluss der Judikatur des BVerfG auf das Medienrecht
In: VerwArch 2001, 149
Dörr, Dieter/
Die Entwicklung des Medienrechts
Zorn, Nicole
In: NJW 2003, 3020
Dreier, Horst
Grundgesetz – Kommentar (Band 1)
1996
Drohla, Jeannine
Theorie und Praxis des Rechts der Presse in Mittel- und Osteuropa im
Vergleich
In: AfP 2003, 525
Eberle, Carl-Eugen
Neue Übertragungstechniken und Verfassungsrecht
In: ZUM 1995, 249
Fechner, Frank
Medienrecht
3., ergänzte und überarbeitete Auflage
2002
Franke, Thomas
Das Zensurverbot des Art. 5 I 3 GG – ein Überblick
In: UFITA 2002, 89
Gallwas, Hans-Ullrich
Der allgemeine Konflikt zwischen dem Recht auf informationelle
Selbstbestimmung und der Informationsfreiheit
In: NJW 1992, 2785
Hemmer/ Wüst/ Christensen
Staatsrecht I – Verfassungsbeschwerde, Grundrechte
5. Auflage
Stand 04/ 2002
Jarass, Hans/ Pieroth, Bodo
Grundgesetz
6. Auflage
2002
Kaminski, Ireneusz C.
The Role of the EU and the Council of Europe in Poland. A hope for the
case of Aleksander Kwásniewski vs. the newspaper daily Zycie?
2004
Kant, Immanuel
Kant, Aufsätze zur Geschichte der Philosophie
4. Aufl.
1994
Köbler, Gerhard
Rechtsenglisch
–
Deutsch-englisches
und
englisch-deutsches
Rechtswörterbuch für jedermann
5., überarbeitete Auflage
2001
Kreile, Johannes
Medienkonzentration in Deutschland
In: CR 1998, 24
Langer, Margit
Informationsfreiheit als Grenze informationeller Selbstbestimmung
1992
Nolte, Georg
„Soldaten sind Mörder“ – Europäisch betrachtet
In: AfP 1996, 313
Organista, Agata
Medienrecht und Medienwirklichkeit in Polen: Transformation der
polnischen Presselandschaft
In: OEI-Arbeitspapiere – Recht und Wirtschaft
Otto, Harro
Ehrenschutz und Meinungsfreiheit
In: Jura 1997, 139
Partsch, Christoph/
Die Informationsfreiheit von Nordrhein-Westfalen – ein weiterer Schritt
Schurig, Wiebke
aus dem Entwicklungsrückstand Deutschlands
In: DÖV 2003, 482
Pisarek, Walery
Kontinuität und Wandel auf dem Tageszeitungsmarkt
1999
Probst, Philippe Marc
Art. 10 EMRK – Bedeutung für den Rundfunk in Europa
1996
Bernd Radeck/
Stephanie Meyer/
In: Beck’scher Kommentar zum Rundfunkrecht
2003
Helmut Goerlich
Renck-Laufke, Martha
Sechster Rundfunkstaatsvertrag und Medienkonzentration
In: ZUM 2003, 109
Sachs, Michael
Verfassungsrecht II – Grundrechte
2. Auflage
2003
Schmidt, Rolf
Grundrechte
4. Auflage
2003
Schneider, Beate
Nach der Medienwende in der DDR
In: PM 411/ 2004
Scholz, Rupert
Meinungsfreiheit und Persönlichkeitsschutz: Gesetzgeberische oder
verfassungsgerichtliche Verantwortung?
In: AfP 1996, 323 ff.
Wolfgang Schulz/ Werner Hahn
In: Beck’scher Kommentar zum Rundfunkrecht
2003
Smeddinck, Ulrich
Informationsfreiheit versus Dienstgeheimnis
In: NJ 2004, 56
Stark, Ralf
Die Rechtsprechung des BVerfG zum Spannungsverhältnis von
Meinungsfreiheit und Ehrenschutz – BVerfG NJW 1994, 2943
In: JuS 1995, 689
Tinnefeld, Marie-Theres
Medienfreiheit im Spannungsdreieck Datenschutz, Zensur, Manipulation
in: MMR aktuell 5/2004, S. 27 - 29
Ukrow, Jörg
Auf dem Weg zu einem einheitlichen europäischen Medienrecht? – Zum
Verhältnis von EG-Fernsehrichtlinie, Europa-Abkommen und
Europäischen Übereinkommen über das grenzüberschreitende Fernsehen
Johannes Wessels/ Michael
Strafrecht - Besonderer Teil
Hettinger
25., neubearbeitete Auflage
2001
Auflagenlisten (Zeitungen)
in: Media Perspektiven Basisdaten 2002
Table of websites
http://www.informationsfreiheit.de/info_allgemein/main.htm (31. 08. 2004)
http://www.spiegel.de/politik/ausland/0,1518,druck-322787,00.html (13. 10. 2004)
http://www.europa.eu.int/abc/doc/off/bull/de/200211/p103034.htm (31. 10. 2004)
http://www.humanrights.coe.int/media/ (31. 10. 2004)
http://www.sejm.gov.pl/english.html (20. 10. 2004)
Table of decisions
BGHZ 131, 332
BVerfGE 7, 198
BVerfGE 12, 205
BverfGE 20, 162
BVerfGE 31, 314
BVerfGE 33, 52
BVerfGE 44, 125
BVerfGE 57, 295
BVerfGE 61, 1
BVerfGE 65, 1
BVerfGE 73, 118
BVerfGE 83, 238
BVerfGE 90, 27
BVerfGE 90, 60
BVerfGE 93, 266
BVerfGE 94, 1
BVerfGE 97, 125
BVerfG NJW 1994, 2943
LG Hamburg ZUM 2002, 655
VGH München JuS 1993, 1056
Beschluss des polnischen VerfGH vom 2. März 1994, W 3/ 93: Fernsehen I – Meinungsfreiheit
(Verbot der Vorzensur, Rundfunkfreiheit)
Beschluss des polnischen VerfGH vom 10. Mai 1994, W 7/ 94 – Fernsehen II, Rechtsstaatsprinzip
(Gesetzesvorbehalt, Auslegung des Gesetzes)
Entscheidung des polnischen VerfGH vom 7. Juni 1994, K 17/ 93 – Fernsehen III,
Meinungsfreiheit, verfassungskonforme Auslegung
RSP/2002/2600 vom 18. 11. 2002
Table of abbreviations
Considering the abbreviations see:
Kirchner, Hildebert
Abkürzungsverzeichnis der Rechtssprache
4. Auflage 1993
At the time of processing, the up-to-date prints of the quoted works have partially not been
available.
Table of contents
Table of literature ......................................................................................................................... I
Table of websites .........................................................................................................................IV
Table of decisions ......................................................................................................................... V
Table of abbreviations ................................................................................................................VI
Table of contents .........................................................................................................................IX
A. Introduction.............................................................................................................................. 1
B. Freedom of speech in the German and in the Polish constitution .......................................... 1
I. “Grundgesetz” (German constitution) ...................................................................................... 1
1. The civil rights of art. 5 GG................................................................................................. 2
2. Freedom of opinion, art. 5 I 1 alt. 1 GG ............................................................................... 2
3. Freedom of information, art. 5 I 1 alt. 2 GG......................................................................... 3
4. Freedom of press, art. 5 I 2 Alt. 1 GG.................................................................................. 3
5. Freedom of broadcasting, art. 5 I 2 Alt. 2 GG ..................................................................... 3
6. Freedom of film, art. 5 I 2 alt. 3 GG .................................................................................... 4
7. Limitation of the civil rights, art. 5 II GG ............................................................................ 4
II. The Polish constitution ........................................................................................................... 5
1. In general ............................................................................................................................ 5
2. Freedom of opinion, art. 54 Const........................................................................................ 5
3. Freedom of press, art. 14 Const. .......................................................................................... 6
4. Limitation of the civil rights ................................................................................................ 7
5. Other causes in law considering freedom of broadcasting .................................................... 8
III. New media (in Poland and Germany) .................................................................................... 8
C. Freedom of speech and the law of public media...................................................................... 8
I. Law of public media in Germany ............................................................................................. 8
II. Particularizing the freedom of speech ..................................................................................... 9
1. Organisation of the system of public media (and the legal basis).......................................... 9
a) Legal basis ...................................................................................................................... 9
b) Broadcasting under public law....................................................................................... 10
c) Private broadcasting ...................................................................................................... 12
d) System of the press........................................................................................................ 13
e) Further public media...................................................................................................... 13
2. Slander .............................................................................................................................. 14
3. Concentration of media and “structural censorship”........................................................... 14
a) “Structural censorship”.................................................................................................. 14
b) Concentration of media ................................................................................................. 15
4. Right of personality and law of freedom of information..................................................... 17
a) Free reporting and the right of personality ..................................................................... 17
b) Law of freedom of information...................................................................................... 18
aa) The meaning of freedom of information................................................................... 18
bb) The intent of a law of informal freedom................................................................... 18
cc) Limitation of the right to get approach to public information.................................... 19
dd) Law of freedom of information in Germany............................................................. 19
III. Law of public media in Poland ............................................................................................ 20
1. Organisation of the system of public media ....................................................................... 20
2. Concentration of media...................................................................................................... 22
3. Law of freedom of information.......................................................................................... 23
4. Christian values contained in the law of public media........................................................ 23
D. Result and outlook on European development...................................................................... 24
I. Germany and Poland in comparison ....................................................................................... 24
II. Outlook on Europe................................................................................................................ 26
E. Conclusion .............................................................................................................................. 28
A. Introduction
The civil rights of communication, such as the freedom to state opinion and especially the
freedom of press, belong to the fundamental conditions for the development of a
constitutional state. The connection between the liberal freedom of the individual and the
democratic freedom of codetermination considering governmental and common questions
finds here its explicit expression. These ideas reach back far in history, for they can already be
found in the Virginia Bill of Rights of 1776, in which it is stated that “the freedom of the
press is one of the great bulwarks of liberty and can never be restrained but by despotic
governments”. Here, the term “freedom” means freedom of the community as a whole1.
Since then, the purpose of freedom of speech and independent reporting has again and again
been forgotten in history. Today, freedom of speech is regarded as being one of the civil
rights which are everyone’s right by nature and to put it down in writing just means its
confirmation. In Germany, at the latest the “Spiegel-Affair”2 (considering the German
periodical “Der Spiegel”) in 1962 shows how important freedom of speech has become to the
Germans themselves: Demonstrations were organized against the arrest of the chief and four
of the leading employees of the “Spiegel” after publishing an unwanted article about a
NATO-manoeuvre.
This essay describes the development of freedom of speech in Germany and in Poland and
will explore the meaning of the law of public media in both states. The main focus will be put
on public broadcasting. Finally, the essay will show future prospects in Europe.
B. Freedom of speech in the German and in the Polish constitution
I. “Grundgesetz” (German constitution)
In the German constitution, civil rights of communication are dealt with art. 5 I GG. They
consist of freedom of opinion, freedom of information, freedom of press, freedom of
broadcasting and freedom of film.
1
Michael Sachs, Verfassungsrecht II – Grundrechte, 2. Auflage 2003, B 5, Rn 1
2
Compare as well BVerfGE 20, 162
1. The civil rights of art. 5 GG
“ (1) ¹Everybody has the right to freely express and spread his opinion in word, writing and
picture and to achieve information out of generally free accessible sources. ²The freedom of
press and the freedom of reporting by broadcasting and film are guaranteed. ³Censorship is
prohibited. “
Art. 5 I GG is divided into three sentences, of which the first one pays attention to the
individual interest of participation in the process of forming an opinion. The second one adds
conditions in favour of important public media (with regard to the process of communication)
and the third sentence includes the prohibition of a preventive censorship.
2. Freedom of opinion, art. 5 I 1 alt. 1 GG
In the centre of this alternative of art. 5 I 1 GG stands the opinion as the summary of
individual views which includes an individual assessment of things and situations, such as
personal convictions and estimations. Freedom of opinion belongs to the basic human rights3
and includes an objective maxim4, i. e. a value decision5. The concept of opinion demands a
wide interpretation.6 It includes rating comments only, but no facts because they do not
contain a subjective element. The term “fact” has to be interpreted very restrictively to
guarantee an effective protection of the freedom of opinion; with it, facts are only included, if
they are prerequisites for the process of forming opinion7. Regarding the content of
expressions there is no restriction, if they fulfil the requirements pointed out above. Proven
falsehoods are not included.8
Stating opinion can take place in word, in writing, in pictures and in any other form; not
included are bare violences.9
With regard to freedom to state opinion, all national natural persons and juristic persons of
private law have legal capacity.
3
BVerfGE 7, 198
4
BVerfGE 57, 295
5
Hans Jarass/ Bodo Pieroth, Grundgesetz, 6. Auflage, 2002, Art. 5, Rn 1
6
BVerfGE 61, 1 ff.
7
BVerfGE 94, 1; 65, 1
8
Hans Jarass/ Bodo Pieroth ebenda, Rn 3 ff.
9
Hans Jarass/ Bodo Pieroth ebenda, Rn 7
3. Freedom of information, art. 5 I 1 alt. 2 GG
Freedom of information based in art. 5 I 1 alt. 2 GG provides a separate type of protection
with regard to the passive side of the process of communication by the freedom, to procure
oneself information out of free accessible public media.10 It is the result of the information
barrier of the Third Reich11, especially the prohibition of monitoring foreign programmes12. A
source of public media fulfils the requirements of free access, if it is suitable in a technical
sense and meant to be perceived by the public in general.13 Governmental prohibition of a
source does not annul free access, but rather signifies an intrusion in the extent of protection
of the civil right.14
4. Freedom of press, art. 5 I 2 Alt. 1 GG
The freedom of press finds its expression in art. 5 I 2 alt. 1 GG. The term “press” receives a
wide and formal interpretation, that includes all individual information such as the written
word (including pictures, symbols etc.), as well as tapes and videos.
The protection of this civil right embraces all types of behaviour, which belong to the
production and spreading of media.15
5. Freedom of broadcasting, art. 5 I 2 Alt. 2 GG
The concept of broadcasting includes both the idea of broadcasting in the law governing
telecommunications and the idea of broadcasting as a media of culture.16
The freedom of broadcasting is meant to be a “serving freedom”17: It is caused by the aim of
this civil right, namely to secure a satisfactory supply of the population with a great variety of
broadcasting offers. It ought to make it possible to every single person to take part in a free
process of forming an opinion which is constitutive for this system18. It requires two elements:
•
Freedom from governmental intervention
10
In detail Margit Langer, Informationsfreiheit als Grenze informationeller Selbstbestimmung, 1992, pp. 127
11
12
BVerfGE 27, 71
13
Michael Sachs ebenda, B 5, Rn 20
14
BVerfGE 90, 27 ( 32); 33, 52 (65)
15
16
Hans Bismarck, Neue Medientechnologien und grundgesetzliche Kommunikationsverfassung, p. 68
17
BVerfGE 57, 295, 319 f.
18
Michael Sachs, Verfassungsrecht II – Grundrechte, 2. Auflage 2003, B 5, Rn 25
•
Protecting the possibility to express the variety of opinion by broadcasting to secure
comprehensive information which requires material, organic and procedural statutes
for particularizing of the freedom of broadcasting
The scope of freedom of broadcasting includes every activity that belongs to the production
and to the transmission of a broadcasting programme and therefore, it reaches far wider than
the protection of the bare reporting. It comprises both broadcasting under public law and
private broadcasting.19
Besides private persons and juristic persons of the private law, as well the public law
broadcasting stations have the capacity to acquire and hold civil liberties: It aims at their
independence towards the state.20
6. Freedom of film, art. 5 I 2 alt. 3 GG
This civil right has the film, defined as a sequence of moving pictures as the subject of
protection. It comprises all kinds of behaviour in order to produce and to distribute a film.
7. Limitation of the civil rights, art. 5 II GG
All civil rights of art. 5 I GG are subjected to the barriers of art. 5 II GG21, which refers to
art. 118 I S. 1 WRV22:
They can be limited mainly by “general statutes” and legal acts in favour of protection of the
youth and the right of personal honour.23 The meaning of the “general statutes” was disputed
for a long time, which caused the “Bundesverfasssungsgericht” (BVerfG - German Federal
Constitutional Court) to develop an uniform theory to fix the demands of them. With it, a
statute can be labelled as “general” in this context, “if it does not aim at the freedom of
opinion itself or at special opinions, but serve the shelter of an object of legal protection, no
matter of a definite opinion”24. The so called “Lüth-Decree”25 describes the interaction
between the civil right and the “general statute” and is authoritative, too:
The freedom of opinion finds its limitation in a general statute, but the very statute must be
19
20
Michael Sachs ebenda, Rn 79
21
Heinz Georg Bamberger, Einführung in das Medienrecht, 1986, pp. 94
22
“Weimarer Reichsverfassung” (Constitution of the Republic of Weimar)
23
24
BVerfGE 97, 125, 146
25
BVerfGE 7, 198
interpreted in the sense of the meaning of this civil right in a free democratic state.
In addition to that, with the prohibition of censorship art. 5 I 3 GG provides a special demand
for limitations of the rights of art. 5 I GG. Only the preventive censorship26 (which means that
it must be incompatible with a free process of forming an opinion) is banned. This censorship
widens the extent of protection granted by art. 5 I GG.27
II. The Polish constitution
During the last approx. 15 years, the Polish Constitution has gone through a lot of changes. Its
actual version has been passed on 17 October 1997 and can among other things mainly be
regarded as the result of Poland addicting itself to EU and the European principles, such as
membership in the Council of Europe (1991), ratification of the European Convention on
Human Rights (ECHR) in 1993, signing the Association Agreement with the European
Agreement on 16 December 1991 (came into force 1 February 1994) and being subject to the
jurisdiction of the Strasbourg Court. All these events influenced Polish law and are expressed
in the Constitution which is influenced by reliable constitutions of other European countries
such as the Netherlands (art. 92 – 94 NConst.28)29.
1. In general
In the Polish constitution the rights of communication such as freedom of
opinion and freedom of the press are laid down in art. 54 Const.30 and art. 14 Const.
2. Freedom of opinion, art. 54 Const.
“ 1. The freedom of opinion such as the gaining and spreading of
information is secured to everyone.
2. Preventive censorship of public media or concession of the
press is prohibited. The duty of acquiring a concession to rule
a broadcasting or television station can be posed by statute. ”
26
Explicitly expressed in art. 112 II 1 BayLV.
27
Thomas Franke, Das Zensurverbot des art. 5 I 3 GG, in: UFITA 2002, pp. 89
28
NConst. ≡ Constitution of the Netherlands
29
Ireneusz C. Kaminski, The Role of the EU and the Council of Europe in Poland. A hope for the case of
Aleksander Kwásniewski vs. the newspaper daily Zycie?, 2004
30
Const. ≡ Constitution of Poland
Art. 54 Const. more clearly defines the purpose of state (!) included in art. 14 Const. (freedom
of press; see down below) and completes it with individual civil rights.
Freedom of opinion comprises every possibility of publishing opinions and information and
making views public to people.
The nature of freedom of opinion is not guaranteed without limits: It can be restricted, if and
where necessary. These limitations are based on three conditions:
•
The limitation based on law is only admissible, if it is allowed by other regulations of
constitution or if the freedom of opinion has to correspond to other statutes in the
constitution.
•
Restriction of freedom of opinion is to be an exception and must not transgress an
inevitable extent. A significant part of this freedom is the prohibition of a preventive
censorship.
•
The core of freedom of opinion must not be infringed upon or endangered. Every
limitation has to be explicitly expressed by law and must be in accordance with the
constitution.31
Finally, the prohibition of a preventive censorship belongs to the core of the freedom of
speech.32
3. Freedom of press, art. 14 Const.
“The republic of Poland guarantees freedom of the press and of other public media of social
communication.”
The Polish legal system prefers the so called formal freedom of press instead of absolute
freedom of public media33, which means the possibility to restrain the freedom of press on the
basis of legal norms.
31
Court order of 2 March 1994, W 3/ 93: Television I – Freedom of speech (Prohibition of preventive
censorship, freedom of broadcasting)
32
Court order of 2 March 1994, W 3/ 93: Television I – Freedom of speech (Prohibition of preventive
censorship, freedom of broadcasting)
33
Izabela Dobosz, Polnisches Presserecht, 1999, p. 75
Considerable is the position of the freedom of press (art. 14 Const.) in chapter one of the
constitution called “The Republic” which refers to the principles and purposes of the state.
That has its reason in Polish history:
During socialism (until 1989), public media were subjected to strict governmental and partial
control, a fact that made them de-facto-organs of various institutions and mainly of
propaganda institutions of the party34. In this context, a considerable turning point was
the 8th may 1989, when the first free newspaper ever in the history of Poland appeared
(“Gazeta Wyborcza” – it grows up out of an underground periodical)35. With it, the people
saw a sign of change. Since then, the privatisation of press came up and that process has not
stopped ever since.
Therefore, Polish legislation has given the freedom of the press the status of a national
purpose: The freedom of the press as a special variation of the freedom of opinion is a basic
element of a democratic state.
4. Limitation of the civil rights
As already pointed out, freedom of speech is not guaranteed unlimitedly and can be restricted
by necessary measures. Besides, the crowd media must be taken into account, allowing
further restrictions explained by the intensity of television and broadcasting and by the limited
number of broadcasting stations. In fact, they cannot promise to realize the principle of
pluralism of opinions. This follows of art. 54 II 2 Const. which corresponds to the
art. 10 I 2 EHRC.36
34
Agata Organista, Medienrecht und Medienwirklichkeit in Polen: Transformation der polnischen
35
Walery Pisarek, Kontinuität und Wandel auf dem Tageszeitungsmarkt, 1999, p. 136
36
Art. 10 EHRC: (1) Everyone has the right to freedom of expression. This right shall include freedom to hold
Presselandschaft, in: OEI-Arbeitspapiere – Recht und Wirtschaft, pp. 30, 34 und 35
opinions and to receive and impart information and ideas without interference by public
authority and regardless of frontiers. This article shall not prevent States from requiring the
licensing of broadcasting, television or cinema enterprises.
(2) The exercise of these freedoms, since it carriers with its duties and responsibilities, may be
subject to such formalities, conditions, restrictions or penalties as are prescribed by law and
are necessary in a democratic society, in the interests of national security, territorial integrity
or public safety, for the prevention of disorder or crime, for the protection of the reputation or
rights of others, for preventing the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary.
5. Other causes in law considering freedom of broadcasting
Besides the constitutional regulations, other causes in law concerning the freedom of
broadcasting exist which supplement them. One of them is especially art. 10 EHRC.
III. New media (in Poland and Germany)
Today, apart from radio broadcasting, television and the press, forms of public media exist
which have to be taken into consideration, mainly the Internet. With regard to the extent of
this work, they will be left out.
C. Freedom of speech and the law of public media
I. Law of public media in Germany
The public ear reached mainly the insolvency of the KirchMedia Group and the discussion
about the right of soccer rendering.37 The evolution of the right of public media is most of all
characterized by re-regulation of protection of young people, the reform of the author’s right
and the “Rundfunkstaatsvertrag” (broadcasting interstate treaty) as well as the discussion
about the future of the dual broadcasting system.38
Law of public media is ruled by the maxim of plurality of opinion.39 There is a broad legal
basis in the German legal system to guarantee comprehensive information, e.g. examples can
be named:
•
Constitutional law (federal law), art. 5 I 2 GG
•
Interstate Treaties (especially broadcasting interstate treaties)
•
Legislation of the German “Länder”, the federal states of Germany, e.g. the “SWRStaatsvertrag”40 and for private broadcasting Land media regulations, e.g. the
“Privatrundfunkgesetz” (“private broadcasting act”).
37
Dieter Dörr/ Nicole Zorn, Die Entwicklung des Medienrechts, NJW 2003, 3020 ff.; right of broadcasting on soccer
38
Dieter Dörr/ Nicole Zorn ebenda
39
BVerfGE 12, 205 (pp. 262)
40
Staatsvertrag des südwestdeutschen Rundfunks
rendering, LG Hamburg, ZUM 2002, 655
II. Particularizing the freedom of speech
The objective maxim of freedom of broadcasting in particular has to be itemized by the
legislator. It has to prevent the creation of a market leadership by private broadcasting
companies in favour of the plurality of opinion and to define the extent of its tasks
(§ 2a RStV41).42
1. Organisation of the system of public media (and the legal basis)
The system of public media is a widespread field. With it, in the following work the emphasis
will be put mainly on the system of (public) broadcasting.
a) Legal basis
Law of media belongs mainly to the Land law. Considering the broadcasting, the “Länder”
are responsible for the organisation and the content of the programmes (art. 30, 70 GG), the
German federation for the transfer of the programmes (art. 73 Nr. 7, 87 f. GG:
“Telecommunication”)43: The federalism is to be a (first) guarantor for the pluralism of the
opinions.44
Main legal basis of broadcasting are the so called “Rundfunkstaatsverträge” of which the last
one (no. 7) was passed on 1 April 2004. They represent contracts between the German
“Länder” in order to make sure that there are unified regulations of public media in Germany
and that they include general principles of programme.45
As well applicable are the norms considering telecommunication such as the
Telecommunication Act (TKG) and the International Treaty considering Telecommunication
(IFV) by which the management of frequencies is regulated.
Additionally, the Law of Broadcasting has to care for the protecting of young people46
(compare as well the Act considering the Spreading of Publications morally harmful for
Adolescents – GjS).
41
6th RstV
42
Hans Jarass/ Bodo Pieroth ebenda, Rn 78; Wolfgang Schulz/ Werner Hahn in: Beck’scher Kommentar zum
43
BVerfGE 12, 205
44
Jürgen Appel, Massenmedien in der Zivilgesellschaft, Auf dem Wege zur Zivilgesellschaft 3/ 99, pp. 156
45
Frank Fechner ebenda
46
BVerfGE 57, 295, 326
Rundfunkrecht, 2003, § 2a, Rn 1 ff.
b) Broadcasting under public law
The concept of broadcasting outside the constitutional law does not differ from the idea
created in this context. Moreover, the constitutional concept results from the concept given in
the underconstitutional law which is caused by historical evolution: In the Constitution of the
Republic of Weimar, there was only a norm considering the system of telecommunication, but
no concept of broadcasting. Following history, the concept of broadcasting has been
developed on a level lying beneath the constitutional one, on which the constitutional
legislator built up the up-to-date “Grundgesetz”.47
The development of the system of (radio) broadcasting has constantly taken place over the
last four decades: Public law broadcasting was established by the allies shortly after the
World War II, starting without the agreement of the German population. Though being
established as public law institutions, the broadcasting stations were kept apart from
governmental structures. Because of their pluralistic inner structures, the plurality and
equality of opinions demanded by the German constitution should be secured.48 It has taken a
long time until finally the today’s dual system49 of public law and private broadcasting has
been set up.
The public law broadcasting stations are constructed as public law institutions. This does not
mean that they are public authorities; right on the contrary, they represent the nongovernmental and social sphere. Caused by the principle of sovereignty of the people
(art. 20 II GG), the forming of opinions and of wills has to happen from people to the state
and not vice versa50. This explains the position of defence of the public law broadcasting
stations against the state which makes it possible for them to rely on art. 19 III, 5 I 2 GG.
Nevertheless, restricted legal supervision51 is admissible also considering the sphere of
programme developing (admittedly just subsidiary and evident control). Accordingly, only a
limited number of governmental representatives should be allowed to take part in the boards
of public law broadcasting stations.52
The public law broadcasting stations have established the following institutions:
47
Hans Bismarck ebenda
48
Michael Sachs ebenda, Rn 45
49
Dieter Dörr in: VerwArch 92 (2001), pp. 158
50
BVerfGE 44, 125, 140 f.
51
BVerfGE 12, 205, 261 ; 57, 295, 326 ; 73, 118, 153
52
•
The “Rundfunkrat” (council of broadcasting or television)53:
Besides its position as the “highest institution of the establishment”54, it is the “private
attorney of public interest”55, which results out of its construction as a collegial organ.
It consists of representatives of the different social groups and is to work in public
interest to safeguard the variety of opinions in broadcasting.
•
The “Verwaltungsrat” (council of administration):
The council of administration is the other collegial organ. Its main task is to give
advice to the director.
•
The director:
The director leads the broadcasting station. He is responsible for the composition of
the programme and with regard to this organisation the director is controlled by the
council of broadcasting (or television).
Apart from the organisation of public-law broadcasting, the “Länder” must secure financing
in order to keep it functionally with regard to its constitutional and legal tasks
(§ 11 I RStV56).57 Although guaranteed by art. 5 I 2 GG, the constitution does not provide for a
particular kind of financing. Further, the legislation has to ensure that the working-order of
broadcasting is not endangered by low financial assets.
The financial budget consists of two types of income:
•
Revenues from broadcasting fees:
The “Rundfunkfinanzierungssteuerverordnung” (statutory order of the tax considering
the financing of broadcasting) fixes the three steps of granting broadcasting fees
(§§ 1 – 7 RfinStV).58
•
Income generated by commercial advertising:
§ 15 RStV abstrains from limitations of commercial advertising (e.g. 20 min/ day in
ARD and ZDF59).
53
Considering the « ZDF » - « Zweites Deutsches Fernsehen »
54
BVerfGE 31, 314, 328; Franz Cromme, NJW 1985, 351, 358
55
BVerfGE 83, 238, 333
56
6th RStV
57
Bernd Radeck/ Stephanie Meyer/ Helmut Goerlich in: Beck’scher Kommentar zum Rundfunkrecht, 2003, § 11, Rn 2
58
BVerfGE 90, 60, 87 ff.
59
“Allgemeine Rundfunk- und Fernsehanstalten Deutschland“; “Zweites Deutsches Fernsehen“
In order to control the financial need of broadcasting stations, a supervisory commission
called “Kommission zur Überprüfung und Ermittlung des Finanzbedarfs” (KEF) has been
established, §§ 2 ff. RFinStV.
c) Private broadcasting
At present, many private broadcasting stations exist besides the public law broadcasting
stations.
After four decades of a public law monopoly, private organisers of broadcasting went on air
for the first time ever (nearly without public!). This event has been preceeded by discussions
filled with ideologies and after all, it took years until every “Land” accepted the new system.60
Even in the last ten years, doubts came up against private broadcasting and against pay-TV in
particular: According to the duty of paying, public broadcasting gains more importance
because of guaranteeing the access to information as well to a poorer audience and in this way
promoting communicative equality.61
The supervision of the private broadcasting stations is up to the so called
“Landesmedienanstalten”, the land media institutions. Like public law broadcasting stations,
they are institutions of public law, but unlike them they are not part of the public
administration. Any governmental influence in the sphere of private broadcasting is
prohibited to make sure that the attribute of broadcasting being a part of the social process of
communication is preserved. In spite of that, the “Bundesverfassungsgericht” (BVerfG)
refused to acknowledge the “Landesmedienanstalten” as a carrier of the civil right of freedom
of speech62.
The (significant) organs of the land media institutions are
•
The main organ:
It mainly fulfils control functions.
•
The executive organ:
It represents the land media institutions.
•
The Commission for Tracing of Concentration of media (“Kommission zur Ermittlung
der Konzentration im Medienbereich” – “KEK”) and the Conference of Directors of
Land Media Institutions (“Konferenz der Direktoren der Landesmedienanstalten –
60
Beate Schneider, Nach der Medienwende in der DDR, PM 411/ 2004, p. 17
61
Carl-Eugen Eberle, Neue Übertragungstechniken und Verfassungsrecht, in: ZUM 1995, 249 ff.
62
BVerfGE 83, 238, 333; agreement with a partially capacity to acquire and hold civil liberties, VGH München
in: JuS 1993, 1056 ff.
“KDLM”), working as organs of the “Landesmedienanstalt” which has to control the
concentration of media63
Producing and transmitting private broadcasting requires a permission based on the
“Broadcasting Act” which is bound to special prerequisites such as reliability and economic
efficiency. The licensing of broadcasting (distribution of frequencies) must not be left to the
executive power (as well considering the public law broadcasting).64
Financing takes place mainly by income caused by commercial advertising (as a principle that
private stations do not receive broadcasting fees), § 43 RStV.
Legal supervision by the state considering the activities of private broadcasting stations is
allowed.
d) System of the press
Besides the system of broadcasting, the press market plays an important role in the process of
forming public opinion.
The German market of press includes newspapers and periodicals. The newspapers can be
differed in three ways:
•
The way of appearance (daily, weekly, Sunday)
•
The way of distribution (e.g. subscription)
•
The area of distribution (over-regional, regional, local)
Until the end of the 1990s, the number of titles and the circulation of newspapers and
periodicals constantly increased and has declined since.65
e) Further public media
Today, public media, the Internet in particular, plays an important role in the context of the
question regarding freedom of speech and law of public media.
63
Johannes Kreile, Medienkonzentration in Deutschland, in: CR 1998, 24, 25
64
BVerfGE 83, 238;
65
IVW-Auflagenlisten in: Media Perspektiven Basisdaten 2002
2. Slander
German criminal law restricts the right to freedom of speech by threatening slander with
punishment (§ 185 StGB). Slander indicates the disregard of a person through utterances,
symbolic acting etc. Collective descriptions are included, too, as long as the signed group is
sufficiently distinguishable from the general public.66 The most famous example for that is
probably the exclamation “soldiers are murders”, a case that referred to various decrees of the
German Constitutional Court67.
The “Bundesverfassungsgericht” tends to neglect the protection of honour provided by
§ 185 StGB against the freedom of speech which has caused a lot of criticism by the legal
doctrine68.
3. Concentration of media and “structural censorship”
Since its first legal acceptance at the end of the 18th century, the civil right of freedom of
speech has aimed at the communicative unfolding and has not (or rather should not)
concentrated so much on industrial or commercial interests. The “freedom of pen nib” is
absolutely necessary for the freedom of the individual “to make public use of the reason in
every part” which refers to the Categorical Imperative of Immanuel Kant69 and demands
responsibility from the journalist to develop limits in the sphere called freedom of speech. To
achieve an open, democratic system based on information that can flow freely, it is necessary
to spread information under the meaning of knowledge70.
a) “Structural censorship”
Therefore, in the German Constitution, the prohibition of (preventive) censorship has been
written down in (art. 5 I 3 GG). Nevertheless, today a new type of censorship seems to appear
which can be called “structural censorship”. It means the distribution of information that is
66
Johannes Wessels/ Michael Hettinger, Strafrecht – Besonderer Teil I, 25., neubearbeitete Auflage 2001,
Rn 472 ff., 508
67
BVerfGE 93, 266; BVerfG NJW 94, 2943; 00, 3421; Rupert Scholz, Meinungsfreiheit und Persönlichkeitsschutz:
Gesetzgeberische oder verfassungsgerichtliche Verantwortung?, in: AfP 1996, 323 ff.; European sight by
Georg Nolte, „Soldaten sind Mörder“ – Europäisch betrachtet, in. AfP 1996, 313 ff.
68
Harro Otto in: Jura 1997, 139; BVerfGE NJW 1994, 2943 and Ralf Stark, Die Rechtsprechung des BVerfG zum
Spannungsverhältnis von Meinungsfreiheit und Ehrenschutz – BVerfG NJW 1994, 2943
69
Marie-Theres Tinnefeld, Medienfreiheit im Spannungsdreieck Datenschutz, Zensur,
Manipulation, in: MMR aktuell 5/ 2004, p. 27
70
Immanuel Kant, Beantwortung der Frage: Was ist Aufklärung?, in: Kant, Aufsätze zur Geschichte der
Philosophie, 4. Aufl. 1994, pp. 55
politically influenced deliberately disguised or consciously manipulated or repressed
information.71 In this context, the refusal of G. Westerwelle, candidate for chancellorship in
2002, as being a participant in a television programme may serve as an example: He wanted
to take part in a tv show called “Kanzler-Duell” broadcasted by the public law tv stations
ARD and ZDF together with the two other candidates for chancellorship. He was not allowed
to because he was regarded as being chanceless in candidacy. It might be justified to look at
the decision of the broadcasting stations with regard to the “structural censorship”: It leads to
a preference of the big parties and a pre-conviction of G. Westerwelle. (At least, the
“Bundesverfassungsgericht” confirmed the decision of the broadcasting stations with sensible
reasons and accepted it as constitutional.72)
b) Concentration of media
Regarding private broadcasting as well as the press, the corresponding problem is
concentration of media. It means uniting broadcasting programmes or (press) publishing firms
in a single business company. Concentrated in one or only a few hands, independent reporting
is nearly impossible and the expression of a variety of opinions is limited to those that agree
with the publishing company’s policies. It leads to a circumvention of the guarantee contained
in the freedom of speech.
An example for the peril caused by media concentration turned out recently during the current
U.S. election campaign: The conservative media company Sinclair Broadcasting Group which
runs 62 broadcasting stations instructed them to broadcast the film “Stolen Honour”. It attacks
John Kerry, candidate for presidency, because of his participation in a military operation in
Vietnam. The American broadcasting institution (FCC) is now asked by 18 senators to
investigate the affair because of the suspicion of abusing public confidence.73
To prevent media concentration in Germany, the “Bundesverfassungsgericht”74 demands the
prevention of information monopolies, accordances as regards content, limited governmental
71
In view of this problem, there can be named the topical „Caroline-Decree“ of the European Court of
Human Rights in Strassbourg, which contains the prohibition of publishing private fotos of VIP’s (confirmation of
the “Caroline von Monaco – Decision” of the BVerfG i.e. in BGHZ 131, 332). The press feared a censorship which
would endanger the freedom of speech. Instead, the decision asks for balancing the two contradicting freedom,
namely the freedom of the press and the individual right of privacy:
The only thing that is explicitly forbidden is the publication of private fotos which are not of public interest.
72
BVerfG NJW 2002, 2939 f.
73
„Gestohlene Ehre“ auf 62 Kanälen, http://www.spiegel.de/politik/ausland/0,1518,druck322787,00.html (13. 10. 2004)
74
BVerfGE 83, 238, 296 f.; BVerfG NJW 1998, 1627, 1629
supervision (by each of the “Länder”) and equal access to private broadcasting programmes
guaranteed by the Land legislation75. On European level, the European Parliament76
admonished the member states to avoid media concentration. Accordingly, the “Advisory
Panel on Media Diversity” (AP-MD) published a report called “Media diversity in Europe”77
which emphasizes the duty of the member states to guarantee the plurality of opinion in view
of art. 10 EHRC.
In German practice, uniform regulations in the Lands are written down in the so called
“Rundfunkstaatsverträge (RStV)” (“broadcasting interstate treaties”). Especially the
§§ 25 ff. RStV contain extensive regulations to secure the variety of opinion and their
expression by private broadcasting stations. Companies are only allowed to send out an
unlimited number of programmes, as long as they do not achieve a quota of spectators that is
more than 25 % (§ 26 I, II 2 RStV78). Holding 25 % and more, parts of the broadcasting time
must be given to third institutions (§ 26 IV RStV79) or a “Programmbeirat” (“programme
advisory board”) has to be established (§ 32 RStV80). The limit of 25 % can actually only be
regarded as an assumption: Any other understanding of § 26 I, II 1 RStV81 extends the limit of
art. 5 II GG, which clashes with strict regulations, and it does not cope with the fact that
majorities on the sector of opinion cannot be held in clear limits nor can be laid down
mathematically.82
In addition to that, the “KEK” and “KDLM” (see above, C. II. 1) b)) have been established
(§ 35 RStV83) to support the measures of the “Landesmedienanstalten”.
Despite these regulations, there is no antitrust legislation concerning press cartel law except a
few specific paragraphs included in the general cartel law. That might lead to the acceptance
of the status of the press companies as an economical business. In addition to that and to fulfil
its constitutional duty to protect the press caused by its exaggerated status for saving the
75
Broadcasting in Germany belongs to Land law, art. 30, 70 I GG; Frank Fechner, Medienrecht,
3., überarbeitete und ergänzte Auflage 2002, Rn 824.
76
RSP/2002/2600 vom 18. 11. 2002; http://www.europa.eu.int/abc/doc/off/bull/de/200211/p103034.htm
77
http://www.humanrights.coe.int/media/ (31. 10. 2004)
78
6th RStV
79
5th RStV
80
5th RStV
81
6th RStV
82
Martha Renck-Laufke, Sechster Rundfunkstaatsvertrag und Medienkonzentration, ZUM 2003, 109 ff.; different
(31. 10. 2004)
Carl-Eugen Eberle ebenda, who thinks stiff regulation (a 25 %- or previously 30 %-market share) to be a suitable
instrument for defining the plurality of opinion or rather market leadership.
83
5th RStV
freedom of speech and forming public, the legislator creates privileges in the §§ 38 III, 35 II
2, 36 I hs. 2, 42 GWB (e.g. the use of the norms considering the control of mergers).84
In fact, there are mergers of press publishing firms especially press on the regional sector:
Publishing is expensive and it is tried to reduce the expenses.85
4. Right of personality and law of freedom of information
Any kind of preventive or structural censorship endangers the specific role of media as a
“public watchdog”86. It finds its most important expression in the secrecy of press. An
informal right of self-determination is part of the rights of communication, as well as the right
to an individual interest in information of other people. It can be questioned whether an
individual interest in foreign information is an element of the constitutional freedom of
information and whether it has to be guaranteed. That must be answered in the affirmative:
The freedom of information requires public media that are freely accessible to which
traditionally belong administrative data. But naturally this informal interest clashes with the
right of self-determination of the opponent and possibly with a public interest in keeping
information confidential.
The tension between these contradicting values requires an instrument so that both objects of
legal protection can be balanced against each other:
a) Free reporting and the right of personality
Considering the relationship between the citizen and the state (for example the public law
broadcasting) on the one hand, and the so called “third party relations” between the citizen
and the private press, organizers of broadcasting etc. on the other hand, German legislation
has taken out the press out of the data protection in favour of free reporting.87 It is in order to
secure the secrecy of editing, which allows journalists a right to refuse to give evidence
(
“Gesetz über das Zeugnisverweigerungsrecht”).88 Without keeping journalists apart from
the duty of giving evidence, independent reporting could not longer be guaranteed: Informants
might be inhibited by the danger of being recognized.
84
Jeannine Drohla, Theorie und Praxis des Rechts der Presse in Mittel- und Osteuropa im Vergleich, in: AfP 2003,
525 ff.; Tobias Gries, Theorie und Praxis der rechts der Presse in mittel- und Osteuropa im Vergleich, in:
OstEuR 2004, pp.186
85
Jürgen Appel, Massenmedien in der Zivilgesellschaft, in: Auf dem Wege zur Zivilgesellschaft 3/ 99, pp. 156
86
Marie-Theres Tinnefeld ebenda p. 29
87
Marie-Theres Tinnefeld ebenda, p. 29
88
Heinz Georg Bamberger, Einführung in das Medienrecht, 1986, p. 190
In the case of intimacy being endangered by reporting, the conflict between public media and
the right of personality has always been decided in favour of the right of personality.89
If the public media do not want to be caught in a dead-end-street with governmental
structures, they are in the need of an ethic of responsibility, based on human rights to fulfil
their role as the “support of publicity”90. Following that, limiting the freedom of speech is
only possible in the context with the code of privacy91.
b) Law of freedom of information92
The idea of free access to information is not a new one: It has already been passed in an Act
in Sweden as early as 1776. In comparison to many other European states such as Poland,
Germany is tailed off. Nevertheless, the new tendencies of developing a law of freedom of
information in Germany must be mentioned especially in the context of data protection.
aa) The meaning of freedom of information
Freedom of information means the possibility to inform oneself about data published by
public authorities and is part of the right of informal self-determination. It is meant to create
the foundation of a democratic society by codetermination and control of governmental
institutions and ought to promote transparency. This modern principle of freedom of
information can be traced back to a statement of the General Assembly of the United Nations:
“Freedom of information is a fundamental human right and is the touchstone for all the
freedoms by which the United Nations is concerned.”
Law of informal freedom means every citizen’s free access to information. It naturally
contradicts the idea of data protection and the right of informal self-determination.
bb) The intent of a law of informal freedom
The intent of these laws is to create more transparency, as far as the work of public
administration is concerned. Citizens get a possibility to take part in the political process and
to control governmental decisions.
89
Compare Hans-Ullrich Gallwas, Der allgemeine Konflikt zwischen dem Recht auf informationelle
90
91
92
Ulrich Smeddinck, Informationsfreiheit versus Dienstgeheimnis, NJ 2004, 56 ff.
Selbstbestimmung und der Informationsfreiheit, in: NJW 192, 2785 ff.
cc) Limitation of the right to get approach to public information
The right of approaching privat and public information is limited, if there is an important
adverse affection.
Private interests include business secrets of firms and single pieces of data refering to private
persons.93
dd) Law of freedom of information in Germany
Germany is one of the few states in Europe that lacks any statute with the aim of making it
possible to every citizen to attain information from the public authorities. Until today, the
burden of proof is up to the individual. A draft bill of a statute concerning freedom of
information intends to turn this burden of proof over to the public authorities94. The only
exception is found in the “UmweltinformationsG”, an implementation of EU directive
90/313/EWG.
In 1998 and 2002, first trials of the draft in 1998 and 2002 failed in early stage due to
resistance by ministerial democracy and trade and industry.
This objection results from a pre-democratic age and is overcome today:
The main argument against the bill is that data protection could not any longer be guaranteed,
if free access to all information available would be given. Other arguments against the bill
were the expense of implementation. But these arguments are not convincing, if one takes into
account recent developments on regional level in the “Länder”:
Laws of freedom of information exist in Brandenburg, Berlin, Schleswig-Holstein and
Nordrhein-Westfalen. Yet the expected “flood of applications” has never come true. Citizens
have used the possibility of getting information mainly in order to inform themselves about
things of the surroundings they are living in. The laws promote more democracy and
transparency thus preventing corruption95. They support reporting based on truth because of
the possibility of getting insight into original documents which is a significant requirement for
a free democratic society. And lots of European states already have enacted a law permitting
access to every information without meeting unbearable difficulties.
At last, it has to be mentioned that a legal act of this kind does not contradict the idea of data
protection because public authorities can refuse access to information in case they have good
93
http://www.informationsfreiheit.de/info_allgemein/main.htm (31. 08. 2004)
94
Entwurf für ein Informationsfreiheitsgesetz des Bundes, Hrsg. netzwerk recherche, Deutscher
Journalisten-Verband, Deutsche Journalistinnen- und Journalistenunion, Humanistische Union,
Transparency International
95
In the statistics of corruption (transparency international) Germany ranges meanwhile only on average.
reasons for it, e.g. when individual intimacy is in danger (see further above; compare
§§ 6 – 9 IFG NRW96).97
On national level, current draft bill of a law of freedom of information fixes in § 1 IFG-E
citizen’s free access to information. Meant to promote the forming of democratic will, it
cannot fulfil this demand, however: § 1 IFG-E is restricted to the executive power. But as well
legislation should have been born in mind98: Citizens might be interested in taking part in the
process of legislation (i.e. plebiscites). But that is not planned.
III. Law of public media in Poland
Considering the development of law of public media, the history of Poland has to be
mentioned:
When communism collapsed at the end of the 1980s because of the catastrophic economic
situation and the political and social crisis, the privatization of the press was put forward.
Guaranteeing freedom of speech was raised to a public purpose. During the time of
communism, the impression of legislation was deceptive in view of the real situation and did
not correspond to that: Lots of the control mechanisms worked without any legal basis.99
Dealing with the subject of freedom of speech and public media, Poland has met similar
difficulties like the German legislation and jurisdiction, although there are also
remarkable differences:
1. Organisation of the system of public media
Considering the organisation of the system of public media in Germany and Poland, a
difference is striking:
In Poland, the main institution of control is the National Council for Radio broadcasting and
Television. It has the status of a constitutional organ, as it is fixed in the constitution in
art. 213 – 215 Const., and keeps public and private broadcasting and television under
surveillance. The chairman of this organ can be appointed by the president, but not be
96
Christoph Partsch/ Wiebke Schurig, Das Informationsfreiheitsgesetz von Nordrhein-Westfalen – ein weiterer
Schritt aus dem Entwicklungsrückstand Deutschlands, DÖV 2003, 482 ff.
97
Considering this problem there are regulations to prevent unwelcome inquiries and to restrict the
right of information (e.g. §§ 5 ff. IFG-Berlin).
98
Ulrich Smeddinck ebenda
99
Agata Organista ebenda, pp. 30
dismissed by him, art. 214 I Const.100. Keeping the broadcasting life under surveillance means
following art. 213 I Const. to “safeguard freedom of speech, the right to information as well
as safeguard the public interest regarding radio broadcasting and television”. For that reason
and with regard to communist Polish history, art. 214 II Const. puts special emphasis on the
fact that members of the Council “shall not belong to a political party, a trade union or
perform public activities incompatible with the dignity of his function”. Defined by its tasks,
the National Council for Radio broadcasting and Television helds the status as an independent
(constitutional) organ.101
That shows the attempt to prevent the governmental supervision of the communist times.
In Poland, like in Germany, broadcasting consists of a dual system of private and public law
broadcasting.
A central part of the legislation concerning the system of broadcasting is the Act considering
Radio Broadcasting and Television which was passed in 1992 on the basis of art. 215 Const.
The Act considering Radio Broadcasting and Television regulates both public law and private
broadcasting. After that, public law broadcasting is endowed by law with the right of
spreading programmes and private broadcasting is in need of a concession.102
Regulations of public law broadcasting can exclusively be found in the Act considering Radio
Broadcasting and Television (ARBT). Its main task is to care that information is responsibly
distributed in order to guarantee the forming of opinion and to promote the democratic
process of will by which one has to take the Christian value system into consideration (see
further below).
The public law broadcasting stations are established as joint-stock companies, so that their
management board and their supervisory board are able to hold the position as a ”buffer“
between the broadcasting stations and the government.103
Financing is mainly secured by subscription fees raised for the use of a raduo or television set
and besides this by commercial spots.
The most important principle of modern broadcasting order is to guarantee that broadcasting
stations will be able to keep themselves free from governmental influences. This freedom can
be limited especially by the fixing of a programme order. In Poland, the programme has to
100
Decree of the Constitutional Court of 10 May 1994, W 7/ 94 (Television II – principle of due course
of law – legal reservation, interpretation of law)
101
Decree of the Constitutional Court of 10 May 1994, W 7/ 94 (Television II – principle of due course
of law – legal reservation, interpretation of law)
102
Cezary Banasinski/ Robert Rittler, Das Recht der Rundfunkunternehmen in Polen, 2000, pp. 557/ 558
103
Cezary Banasinski/ Robert Rittler, Das Recht der Rundfunkunternehmen in Polen, 2000, p. 590
comply with Christian values.
At present time, the importance of public law broadcasting is declining which consequently
leads to a loss of subscription fees. A new concept for the backing is still to be discovered.104
2. Concentration of media
Concentration of media jeopardizes the diversity of opinions: Journalistic and economic
competition are essential for safeguarding the plurality of opinion.
The most pressing problem in the Eastern European states is that they do not have antitrust
legislation capable of regulating mergers of companies in the communication sector properly:
Since the down-fall of the communistic system, many things regarding the scope of media
changed. Nearly every newspaper is now controlled by private owners. They do not function
as a part of governmental control anymore thus making it difficult for the administration to
exert influence on their publications. But the advantage of the prevention from any
governmental influence carries on the other hand the disadvantage of concentration of media
with it. Especially foreign investors have bought Polish titles such as Rzeczpospolita: For
instance, Hersant (France) hold the majority of shares of nearly every press company.105
Though there might be the chance of “promoting democracy from outward”, there is always
the danger of another form of dictatorship which seems to have already happened in Slovenia:
Unwanted journalists were dismissed by the foreign owners. Additionally, the chance of
promoting democracy can only be fulfilled, if companies strive for more than for mere.106
In order to avoid media concentration, Polish legislation enacted two regulations:
(1) Running a broadcasting station has to be done in the way an economical firm is run; it
is subject to antitrust law.
(2) Private broadcasting stations are subject to a special broadcasting legal regime.
Market leadership of a company is assumed when the company has a market-share of more
than 40 % (which is 15 % more than in Germany!). Regulations can be found in
art. 36 RFG107 ff. and in the Polish AntiMplKSchG:
104
105
Zbigniew Bajka, Ausländisches Kapital in der polnischen Presse, 1999, p. 85
106
Jeanine Drohla ebenda; e.g. the Springer company, which dominates the press market in Eastern Europe since
1988, emphasizes its purpose of gaining profit beside its purpose of promoting Western ideas in the Eastern
European states.
107
Rundfunkgesetz
Mergers have to be registered. Preventively, a supervision of mergers can take place.
3. Law of freedom of information
In contrast to German law, Poland’s act of freedom of information has been passed already
and is even mentioned in art. 61 Const.:
“(1) Every citizen has the right to achieve information about the activities of the organs of
public force and about persons who hold public functions. … ”
The procedure of attaining information is to be laid down by statute or - regarding the Sejm
and the Senate – by their standing rules (art. 61 IV Const.).
4. Christian values contained in the law of public media
With the Act of Radio Broadcasting and Television both the public and private broadcasting
stations are endowed with rights and obligations.
Especially art. 18 II ARBT and art. 21 II p. 6 ARBT are in the centre of a discussion:
The persons responsible for the organisation of television and radio programmes are obliged
to respect religious feelings of the audience.
The organisation have to respect religious feelings which must not be mixed up with the
spreading of Christian ideas. The “system of Christian values” named in art. 21 II p. 6 ARBT
lists only those principles that are an universal basic truth of ethics at the same time.108 This is
not the same as Christian religion. Following this, the interpretation of Christian ideas as a
legal criterion for the admissibility of spreading broadcasting programmes is rejected by the
Constitutional Court. Right on the contrary, this regulation ought to express the universal
ethical principles of the Occidental culture.109
The Constitutional Court criticizes the formulation of art. 21 II p. 6 ARBT which is unclear
and in this way leads to doubts considering its compatibility with the constitution.
Nevertheless, the use of blanket clauses which refer to conviction and values extended in
society is allowed. The regulation can be criticized in view of its practical application, but it
does not contradict the rule of law because it does not connect to the rights and obligations of
citizens and it only regulates the tasks of the public law boradcasting and television.
108
Decree of the Constitutional Court of 7 June 1994, K 17/ 93 – Television III, freedom of speech,
interpretation compatible to the constitution
109
Art. 21 II p. 6 ARBT functions as a basis which has to be realized in the context and in
agreement with other regulations.110
D. Result and outlook on European development
I. Germany and Poland in comparison
As already shown further above, Poland possesses a relatively young Constitution. It came
into force on 17 October 1997, which is about eight years after the collapse of communism,
and can be regarded as the significant step in the direction to a modern democracy in the sense
of a unified Europe.
The attempt to eliminate all communistic influences is the central theme of the constitution as
a whole, not only with respect to the articles concerning the freedom of speech, and is as well
the intent of the law of public media.
“All power in civil Society should be derived from the will of the people.”111
This sentence entitles the homepage of the Sejm and expresses the idea of a new Poland. The
Polish Constitution is given with regard to the model of reliable constitutions of other
European states such as the Netherlands and Germany112.
Although relating to Western “idols”, Poland has taken its own way and with regard to a law
of freedom of information shows much more courage to progression which might as well be
caused by its history: Freedom of information is another possibility to keep apart from
communistic rules.
Interestingly enough, Polish legislation has not paid attention on the problems regarding the
“inner freedom of media”:
The power of media companies acting as employers can endanger the freedom of speech and
journalistic independence. Therefore, many legislators grant privileges to journalists.113 In
Poland, journalists do not have more rights and privileges than other employees (e.g.
collective agreements).114
110
111
http://www.sejm.gov.pl/english.html (20. 10. 2004)
112
Aleksander Kwásniewski vs. the newspaper daily Zycie?, 2004
113
114
Radiation of the civil right of press; Hans Jarass/ Bodo Pieroth ebenda, Rn 72
However, the difficulties concerning the evolution of media democracy in Poland and
Germany are much more alike than one could think on the first-hand sight:
The German Constitution and legislation have to be seen on the background of the Third
Reich which has – regarding free reporting and forming opinion as being hindered - a lot in
common with communist Poland. Democratic development and the expression of opinions
were not possible. Public media were held under governmental control.
In Poland, free media and journalism prevailed as the basis for a new democratic age which
was as well the aim of the allies in Germany after the World War II: Public law broadcasting
was founded by the allies in order to create and guarantee decentralisation and the plurality of
opinion by the pluralistic structure of the broadcasting stations.115
Furthermore, the development in the Eastern part of Germany was similar to the development
in Poland: Nearly at the same time, Round Tables were established in both states to prepare
liberalisation and to constitute a legal act of public media.
Until today, the population of Eastern Germany sticks mainly to the rules of the GDR116:
Regarding the habit of watching television of the population of the new lands besides the
private broadcasting chiefly programmes directed to regional information are successful (such
as the MDR, NDR and ORB117). They stick to the GDR traditions and serve regional
happenings and repetitions of former popular transmission. As well transregional daily
newspapers and weekly newspapers are not sold successfully, even 15 years after the
downfall of the GDR.118 That might be caused by the people of the East bloc searching for
their identity.119
Considering the way of jurisdiction in Poland, a similar phenomenon is striking:
The application of international law is mainly left to the Higher Courts and looking over the
own borders is rarely ventured120, which shows obviously a relic of the communistic time,
when watching Western TV was disapproved of – and even more – it was prohibited.
115
“It is the fundamental politic of the US military government that the control about public media, such as the press
and the broadcasting, has to be distributed and be kept apart from governmenatl influence.” (Lucius D. Gray,
first military governor in 1947)
116
German Democratic Republic
117
“Mitteldeutscher Rundfunk“, “Norddeutscher Rundfunk“, “Ostdeutscher Rundfunk Berlin-Brandenburg“
118
Jürgen Appel, Massenmedien in der Zivilgesellschaft, in: Auf dem Wege zur Zivilgesellschaft 3/ 99, pp. 156
119
Beate Schneider, Nach der Medienwende in der DDR – Folgen einer Entwicklung zwischen Wandel
und Beharrung, PM 411/ Februar 2004, p. 22
120
Aleksander Kwásniewski vs. the newspaper daily Zycie?, 2004; to him, that might as well be a cause that Poles are
dissatisfied with the Polish jurisdiction and makes them think that they only may find justice in Strasbourg.
II. Outlook on Europe
Art. 10 I EHRC guarantees the right of opinion and information as the summary of common
values in the member states of the European Community (EC).
Parallel to the radical change in the Eastern European states and in 1997 nearly at the same
time as the passing of the Polish Constitution, the EC renewed its directive considering
regulations in order to coordinate television broadcasting. Their intention is to promote the
development of a standardized law of public media in Europe. Though meanwhile the
freedom of speech is fixed in art. 11 of the European Constitution, there are still doubts
whether the aim of a unification of law of public media can actually be realized.121
Firstly, the laws of public media in the European states show essential differences that are
based on the different constitutions.
Secondly, art. 94 ff. TEC (Treaty of the European Community) demand a unification of law
of public media with methods that grant the sovereignty of the member states regarding the
organisation of culture and television. With it, an unification cannot be carried out by
adjustment of law, but with recommendations.
Thirdly, mass media fulfil their task of forming and promoting democracy only on national
level, and so plans of uniting the law of public media shall find their limitations in the
democratic deficit of legitimation of the association.
In addition to these points, the national identity ought to continue, which causes prohibition of
passing European regulations, as far as the safeguarding of diversity of opinion and the
organization and the financing of television transmission are concerned.
Finally, the principle of subsidiarity of the European law (art. 5 TEC) – e.g. the rule of
reasonableness – puts a limit on forming a European law of public media.
But there are as well factors which support the development of a European law of public
media:
The first one is a technical phenomenon. Broadcasting waves do not stick to the borders of
their states, a fact that has already caused competition between domestic and foreign
broadcasting stations.
Secondly, the dual system of broadcasting leads to national regulations on broadcasting
becoming alike especially with regard to the boundless possibility of commercials and the
121
Jörg Ukrow, Auf dem Weg zu einem einheitlichen europäischen Medienrecht? – Zum
Verhältnis von EG-Fernsehrichtlinie, Europa-Abkommen und Europäischen Übereinkommen über das
grenzüberschreitende Fernsehen
common standards of protecting of young people and consumers. Other factors are the general
regulations which organizer of public media are subject to.
Thirdly, emphasis has to be put on the evolution of the Eastern European states since
revolution which unites the European states in their effort to a democratic constitutional order.
With it, the problems the states have to face are more and more alike.122
And furthermore, the passing of the first European Constitution might have been the first step
on the way to a unified European legal system, as well considering a standardized law of
public media.
It is as yet unclear, whether there is a realistic possibility of creating a unified European law
of public media. It is important, however, to keep in mind that legislation on public media
faces similar difficulties on national level. If these problems - the most striking might be the
one, that regulations are following facts and not the other way round123 – cannot be sorted out,
there might be no chance at this point to find the answer on European level.
On the other hand, the system of broadcasting via satellite etc. demands unified principles of
European broadcasting: The technical development cannot be stopped, but rather needs to be
regulated (compare already e.g. the European Convention on Transfrontier Television).124
In order to unify regulations of broadcasting, there is the necessity of solving jurisdictional
conflicts between the member states and the EU: If broadcasting does primarily belong to the
level of service and economy, it is subject to the regulations of creating an European market.
If it is an element of culture, the legal competence are with the “Länder” of the German
Republic. The art. 94 ff. TEC do not provide a solution; the problem remains to be solved by
way of balancing the different positions.125
122
Jörg Ukrow, Auf dem Weg zu einem einheitlichen europäischen Medienrecht? – Zum
Verhältnis von EG-Fernsehrichtlinie, Europa-Abkommen und Europäischen Übereinkommen über das
grenzüberschreitende Fernsehen
123
Martha Lauke-Renck ebenda
124
Horst Dreier, Grundgesetz – Kommentar, Band 1, 1996, art. 5, Rn 20 ff.
125
Horst Dreier ebenda; Philippe Marc Probst, Art. 10 EMRK – Bedeutung für den Rundfunk in Europa, 1996, p. 63
E. Conclusion
In conclusion, Germany and Poland are actually facing similar problems despite their going
through different historical developments.
Public media have a key function regarding the development of a free democracy and
regarding the process of forming a public will. Their independence from governmental
structures is the essential for a constitutional state. But to burden media alone with all
responsibility to guarantee a democratic society seems to be inadequate. The best
presupposition for free media is rather a strong civil society. Promoting that shall be the
purpose of every democratic state.126
–
END OF WORK –
_________________________
_________________________
Place, Date
Signature
126
Jeannine Drohla ebenda

The freedom of speech and law of public media

Transcription

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