The Regulation of the Media
Ensuring Diversity of Opinion
The broadcasting landscape in Germany is shared equally by the public radio and TV providers and the private stations. The private stations achieve an audience share of around 50 per cent, the public TV stations – ARD, ZDF, the regional channels and special stations like Arte, Phoenix and 3Sat – a share of 45 per cent. The remaining five per cent watch or listen to foreign or local stations. A pluralist set-up, but how does a broadcasting landscape like this come about? Find out more in this interview with communication scientist,Wolfgang Seufert.
Mr Seufert, the German Constitution stipulates that the freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. So why is media regulation necessary?
It has something to do with the danger of the media shaping people’s opinions by means of monopolisation. Any private provider may own as many TV stations in Germany as he would like, even a large corporation. There is, however, an upper limit to the number of viewers he may attract. Nobody is allowed to achieve an audience share of more than 30 per cent. Even when 25 per cent is registered, they check to make sure that the critical level that still ensures a diversity of opinion has not been exceeded , especially in cases when the company in question additionally owns other media, for example, print or radio.
Who does this checking?
It is done by the Commission on Concentration in the Media (Kommission zur Ermittlung der Konzentration im Medienbereich, KEK). It is responsible for ensuring a diversity of opinion in the media. Its work involves checking whether a company has achieved predominant media power due to the granting of television licences or due to changes in the shareholder structure. It also examines so-called “special groupings”, i.e. several providers merging together.
So something like Silvio Berlusconi’s private media group, tied in the holding company Fininvest, is not possible in Germany?
No way! The KEK commission would not allow such a large share of the market. Furthermore, in Germany an active politician is not allowed to own a media group. That would violate the constitutional principle of independent broadcasting.
What sort of people are members of this KEK Commission?
There are six representatives from the media authorities of the German federal states and six experts – high-level legal experts.
So it is not a government committee?
No, in Germany media law is determined by the individual federal states – the Länder. Every federal state has its own regulatory authority for media and its own set of media laws. There are 14 regulatory authorities, instead of 16, because some federal states joined forces to work together. They grant the broadcasting licences for private providers. The public radio and TV stations, like ZDF or ARD, have their own supervisory boards, a maximum of a third of whose members may come from the governments of the federal states.
Isn’t that too much bureaucracy?
The German Federal Constitutional Court decided in the so called television judgement in 1961 that supervision of the media was the job of the federal state governments – the Länder. The state as well as the federal state governments, in general are not allowed to have any direct influence on radio and TV broadcasting. The governments of the federal states may send representatives to the regulatory authorities, but most of the time the members come from other social groups like the trade unions, churches or associations.
Are these regulatory authorities allowed to control program content?
No, nobody is allowed to do that. It is not allowed to influence the private stations. When they are granted a broadcasting licence, the regulatory authorities may only determine how much information a particular program may contain or, in the case of radio, how many words. Of course, licences are not renewed or extended if a station contravenes a provision of youth protection law or a basic right.
And nobody can lodge a complaint?
Yes, of course. In the press laws of the federal states and in the interstate broadcasting treaties it is laid down that everybody has the right of reply if they have been affected by a factual claim in a media report that has shown them in a bad light. He can also go before a civil court and claim damages. The right of reply can also be enforced by a civil court.
There is private capital backing the private radio and TV stations. What role do the supervisory boards play in these companies?
For them it is all about making money. Shareholders want to make a profit. As long as the advertising revenues are good, they do not interfere in the broadcasting side. Take the two biggest private stations: Pro Sieben/Sat1 and the RTL-Group. Pro Sieben/Sat1 is a listed company in which US capital companies have invested. The RTL-Group is majority owned by the Bertelsmann group that is run by a foundation and the Mon family. These two broadcasting groups share the TV advertising market in Germany.
How has the broadcasting landscape been affected by the Internet?
The Internet makes it very easy for any private entity, any company to become a media provider, like the Red Bull group that launched its own station – Servus TV. At the moment those providers who broadcast exclusively on the Internet are not subject to any regulation by media laws at all. Take, for example, online video providers like Amazon, etc. They are de facto only subject to normal commercial law. The regulatory authorities of the federal states, who in fact should be checking up on them, are lagging behind in this case. It is, however, particularly difficult, when the provider, for example, is based in another country. At the moment all of them are more or less relying on voluntary self-regulation.
After the Second World War, the public broadcasting system in Germany has been modeled after the british system. The federal structure and the constitutionally committed principle of independent broadcasting are based on the experience from the Nazi era. In those days the broadcasting was subordinated to the propaganda purposes of the state.