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Media Regulation in Europe: The Case of Germany

By Ronald Meinardus *

Notes for a presentation at the international conference on "Egypt and International Models of Broadcast Regulation and Accountability" organized by the Kamal Adham Center fort Television and Digital Journalism of the American University in Cairo on February 17, 2013

1. Definitions

Media regulation may be defined as all state activities that aim at influencing the economic and social behavior of the media. On the other hand, media self-regulation describes the various forms of regulations by non-state actors. In this case, the state forgoes (or delegates) certain activities to non-state actors who set up their own rules.

2. Leading questions regarding media regulation in a democratic society

Objectives: What are the aims of media regulation or self regulation? Actors and mechanisms: What are the institutional framework and the legal basis of media (self-) regulation?

We are all aware of the immense power of media in influencing the way people think and, in consequence, also behave and act. In a democratic context, media regulation aims at strengthening the democratic order and promotes social integration. Media regulation aims at influencing the media so that they may provide public spheres and a communicative environment which enables and facilitates the balancing of conflicting groups and interests in society in a peaceful manner. Media, thus, play a civic and also educative role as their information and commentary are an important source for the decision making process of the citizen.

In a liberal democracy, the media should be free and independent of state control and also influence. Also: A liberal and, thus, democratic media order is an order in which no one single power controls the media and the means of distributing these. This said, diversity is a crucial element of a democratic media order reflecting the plurality and pluralism (political, economic, social, cultural, religious etc.) of modern society. In a liberal democratic order, freedom is never limitless. Media regulation includes legal norms that prevent such negative phenomenon as incitement, violence against other members or groups of society or causing psychological harm to minors.

In short and formulated in the affirmative: Media regulation aims at safeguarding the diversity of the media and promoting (or controlling) the quality of the media's content.

(Perennial question of journalism schools: how can we measure journalist quality? The various codes of ethics set standards which assist in measuring quality, and – negatively – identify bad journalism.)

3. Media Regulation in Germany

The legal (and normative) source of all media regulation is the constitution which in Article 5 states:

"Every person shall have the right to freely express and disseminate his opinion in speech, writing and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship."

While this first paragraph defines the freedoms – and prohibits state interference – paragraph 2 defines the limitations, which are an important source of media legislation and therefore regulation:

"These rights shall find their limits in the provisions of general laws, in provisions for the protection of young person, and in the right to personal honor."

Germany's constitutional court has released several decisions clarifying that this article does not only protect the citizen (and the media) from censorship but also obligates the state to ensure the existence of a media order that guarantees the stated objectives: democracy and social integration.

3. 1. Regulation of the Press

The Federal Republic of Germany is a federal state in which press and media issues are the competence of the federal states. Therefore, we have as many press laws as we have federal states. In general, the press laws aim at (a) securing press diversity and (2) securing quality of content.

While there is a slow trend towards concentration in the press, a big variety of newspapers exist: The five biggest publishing houses control approximately 45 percent of the market.

To secure press variety (and prevent market dominance) a merger control legislation is in place. This effectively prevents one publishing company from controlling more than 33 % of the market.

(b) Various regulations exist aimed at the content of the press and securing certain standards. Also for journalists, the criminal laws apply. Therefore, they are prohibited from publishing state secrets, they are prohibited from inciting racial, ethnic or religious hatred or sedition. According to German criminal law it is also illegal to advocate for aggressive wars or deny the Holocaust. These provisions should also be seen against the background of Nazi dictatorship and the crimes committed in Germany's name against many peoples in the world. Apart from these prohibitions, there exist regulations that aim at protecting minors from pornography and violence. And finally, there exist the personal rights of the individual. Individuals may sue the media if they feel insulted by these.

In addition to the general laws, press laws regulate the work of newspaper editors and journalists. While the various (state) press laws are different, they all contain articles regarding journalistic accountability, due diligence and a provision demanding the clear (and visible) separation between editorial content and advertisements. At the same time, these laws protect the newsroom from searches and confiscation by state authorities. Journalists have the right to conceal the source of their information. Finally, newspapers are required to publish retractions/counter statements in case of false reporting.

But what is false reporting? What if the two sides are in conflict? In such cases, the German Press Council steps in.

Created in 1956, the German Press Council is the most prominent institution of media self regulation. It represents publishers' and journalists' associations on an even level. This parity is guaranteed in all the organs, and also in the complaints committee. In Section 1 of the complaints procedure the task of this committee is clearly stated:

"Anyone is entitled to complain generally to the German Press Council about publications or proceedings in the German press. Furthermore, anyone who is of the opinion that the dissemination of personal information for journalistic or editorial purpose within the context of research or publication violates the right to data protection can also submit a complaint."

The basis of the deliberation and the decisions of the Press Council is the "German Press Code" of 1973. This defines in clear terms the ethical and journalistic standards of journalism. In the preamble the code states that publishers, editors and journalists must remain aware of their responsibility towards the public and "their duty to uphold the prestige of the press." Reference is also made to the constitution, the constitutional laws and the "duty" of the press to uphold these and the freedom of the press.

The complaints committee meets regularly and discusses the complaints. There are four possible sanctions for "unethical" publications, the most stringent being a "public reprimand" - which is considered bad publicity for the newspaper.

3. 2. Regulation of Broadcasting

The regulatory frameworks for the printed press and the (electronic) broadcasting media differ as the basis for their operation is very different. It is considered cheaper to set up a newspaper than a Television station. As a result, the diversity in the field of the printed press is by far higher as is the case of the broadcasting media. A sophisticate system of regulations and controls has been put in place to secure diversity in the broadcasting system.

For starters, Germany has a dual system of broadcasting: on the one side public TV and radio, on the other side (since the mid 80ies) private broadcasting media. For obvious reasons, both have very different regulatory mechanisms.

3.2.1. Public broadcasting

Article 5 of the constitution states that free broadcasting is guaranteed. This means broadcasting must be free from state control. After the Second World War, there existed no economic base for the proliferation of private broadcasters. Therefore, state laws were enacted mandating the creation of public – and at the same time "state-free" - broadcasters. In the different regions of Germany self administered broadcasting organizations were set up. These are controlled by "broadcasting councils" (Rundfunkrat) which could be compared with boards of governors. The membership in these powerful organs is regulated in the regional media laws. In all cases, delegates representing non-state actors are in the clear majority and represent the various "socially relevant sectors": Trade unions and employer associations, cultural and sports associations, religious institutions, political parties, non governmental organizations etc.

This set-up is a guarantee for the internal plurality of German public broadcasting. In this system it is not possible that relevant voices in society are not given space in the programs. The "broadcasting councils" operate very much like parliaments, electing the president of the broadcaster, supervising the program and the selection of the personal and approving the budget.

Public broadcasters perceive themselves – and stand in the tradition – of providing a public service. They are committed to high journalistic standards and spend a lot of money training their staff. They also adhere to their own internal codes of conduct. The BBC's "Statement of Promises to Viewers and Listeners" may well be called a benchmark for such internal regulatory codes.

For their services, the public broadcasters receive "fees" which are collected – not by the state – but by a special public organization and distributed among the various stations. Every German household must pay approximately € 20,00 monthly which gives the broadcasters (very) much money to produce sophisticated and high quality programs. Presently, the public broadcasters produce more than 25 TV programs (the plurality of which are regional) and more than 60 radio programs. Critics question whether all these programs are needed considering the proliferation of private broadcasting and the Internet.

3.2.2. Private broadcasting

Since the appearance of the private broadcasters, Germany has a dual system. The private broadcasters are supervised by media authorities (Landesmedienanstalt) which are controlled in the same manner the public broadcasters are. These institutes are financed via the broadcasting fees. The main responsibility of these institutes is to grant licenses or to refrain from granting these in case there is a danger of concentration and a loss of diversity.

A complicated formula is applied according to which no single private TV broadcaster should acquire a bigger market share than 30 %. According to this formula 40 % of market share (in terms of viewership) should rest with the public broadcasters. Thus far, this ratio has been achieved,

Finally, the private broadcasters have introduced their own regulating system. The "Voluntary Self Control Television" is mainly engaged in regulating the issue of violence and pornography in the programs with an aim of protecting the youth. Among the regulations are ratings for movies and show times for films and other programs.

Main secondary sources:

Wolfgang Seufert/Hardy Gundlach: Medienregulierung in Deutschland. Ziele, Konzepte, Maßnahmen, Baden-Baden 2012.

Thomas Becker: Medienregulierung in Deutschland – Geschichte und Struktur, Arnstadt 2000.

* Dr. Ronald Meinardus is the Regional Director of the Friedrich Naumann Foundation for Liberty (FNF) for the Middle East and Northern Africa (MENA) in Cairo. Send comments to egypt@fnst.org.


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