The politics of media provision and control in Germany

Contents:

Broadcasting and the role of licensing
The influence of the Allies on the structure of post-war German broadcasting
The role of the Bundesverfassungsgericht
Bund-Länder rivalry and the origins of the ZDF
The "limited frequencies" argument and its practical consequences
The deployment of cable and satellite technologies
Ownership and programme content in the commercial TV sector : legal provisions
Coping with the Internet

Broadcasting and the role of licensing

If I want to publish a newspaper in Germany and I have the necessary resources, I am free to go ahead and do so subject only to the kind of regulations that apply to any business enterprise whatsoever: the state has no right to examine my credentials and motives or to require me to have a licence to carry be a publisher or editor, and any attempt to introduce such a licensing procedure would meet with overwhelming rejection from all areas of the political spectrum. Nobody thinks that’s at all surprising. And yet it is taken as entirely unobjectionable that the authorities should apply strict licensing conditions to those who want to put out radio and television broadcasts.

Behind this discrepancy is what was once a strictly technical issue, which governments the world over exploited for political and financial reasons. There are (or rather were until very recently) strict physical limitations on the number of radio and television transmissions that can take place in the same area at the same time without each wiping out the other. Access to the small number of available frequencies therefore had to controlled by the state in the interests of fairness (the "limited bandwidth" argument); but it looks as if such controls will remain, in Germany at least, even after digital transmission techniques make the number of available channels far larger than could be conceivably be used up. So how should the provision of material via the Internet be treated? As a business like any other (like a newspaper) or as something that requires the providers to be specially licensed and supervised (like a TV station)?  This question, made especially acute by the distinctive powers of the Länder,  has been at the heart of dicussions over new legislation for on-line provision in Germany.

The influence of the Allies on the structure of post-war German broadcasting

In the field of broadcasting, as in so many other areas, the Allies (or at any rate the three Western powers) saw their it as their task in the immediate post-war period to devise a system that would prevent the repetition of the National Socialist use of broadcasting as a tool of state propaganda. Similarly, the authors of the Grundgesetz tried to cast the provisions concerning freedom of opinion in such a way as to give broadcasting, along with the other media, the positive constitutional duty of contributing to political education and broadening political debate, as well as imposing restriction on the possible use of the airwaves in the interests of a particular government.

The three Western Allies agreed that only the strictly technical aspects of broadcasting in post-war Germany should remain in the hands of a central government ministry, the Federal Post Office. The Bundespost, and subsequently its telecommunications offshoot Deutsche Telekom, recently partially privatised and deregulated, were given and have retained the sole right to collect licence fees, to install, maintain and control land-lines for distributing broadcast material between studios and transmitters, and to supervise the technical operation of all transmitting equipment, irrespective of its ownership. In the early 1980's this monopoly was extended to cover the planning and installation of cable networks and the operation of direct-broadcasting television satellites, two areas which in the UK, as a matter of deliberate government policy, were handed over to commercial firms. But for all its powers over the technical infrastructure, the Bundespost and its successor Deutsche Telekom has no control whatsoever over deciding who is allowed to provide programmes or what the content of such programmes should be, nor has any other organ of the Federal Government. Such matters were placed by the Western Allies firmly in the hands of the Land governments, where, thanks to the support of the Constitutional Court, they have remained ever since. The intention of the Western Allies was to ensure that broadcasting should be independent of governments, parliaments and parties, and yet be under sufficient democratic control to prevent it being captured by any particular interest group. Placing supervision of the structure and content of broadcasting permanently in the sphere of the Land governments was thought a good way of enforcing at least some measure of plurality in the system.

The role of the Bundesverfassungsgericht

Just as the Weimar constitution of 1919 preceded broadcasting altogether, so too the Grundgesetz, promulgated in 1949, preceded the emergence of television as a significant influence on public taste and opinion, and of course the kind of cummunications made possible by the Internet were completely undreamed of.  Precisely because the Grundgesetz preceded the introduction of television,  the development of the media in the Federal Republic has been decisively shaped by certain landmark decisions of the Bundesverfassungsgericht, which has repeatedly been called upon to just what the Grundgesetz means when applied to various proposals for changes or extensions to television broadcasting. On a number of occasions in, the Constitutional Court has passed extremely important judgements in these matters, which have subsequently had considerable impact on the debates about regulating online services.

Bund-Länder rivalry and the origins of the ZDF

The ZDF (Zweites Deutsches Fernsehen) based in Mainz came into existence in 1963 as the unintended result of the Adenauer administration trying to do something very different. The defeat of Adenauer’s government at the hands of the Länder in what became known as the Fernsehstreit caused a remarkable delay in the development of commercial television in Germany, and lies behind many of the waverings of the legislators over the so called "Multimediagesetz" (IuKDG) over thrty yers later.

TV broadcasting did not begin in Germany until the end of 1952, and it did not spread with anything like the speed it did in England. But Adenauer had sufficient political instinct to guess that before very long TV would become a powerful influence on public opinion, and he was deeply worried about the way that the structure left by the Allies prevented the Federal government from exercising any direct influence whatsoever over broadcasting companies. In the late 1950's he was increasingly envious of the way Charles de Gaulle used the strongly state-influenced French television as a political tool in governing France, and he thought he saw a way to create a similar vehicle for government influence in Germany by adapting the model by which commercial television had recently been established in Britain, whereby an Independent Television Authority (later to become, with the advent of commercial radio, the Independent Broadcasting Authority or IBA) had been set up to franchise the production and delivery of television programmes for fixed contract periods to private companies financed by advertising revenue.

What Adenauer had in mind was a system whereby the Federal Government would directly grant a broadcasting licence to a national private television company, operating within guidelines determined by the Federal Parliament, bypassing the authority of the Länder, and between 1958 and 1961 he struggled tenaciously to establish such a system, despite the provisions in the Grundgesetz about the sole authority of the Länder in broadcasting matters and against the dogged opposition of all the Land governments, including even those dominated by his own party, the CDU. The Länder governments insisted that, if there was to be a national second channel, it had to be a public service organisation set up and regulated by a consortium of the Länder under a Rundfunkstaatsvertrag to which all the Länder would be signatories, not by the central authorities.

In spite of all warnings, Adenauer pressed ahead with his plans and founded Deutschland Fernsehen GmbH, with a declared start-up date for its transmissions of 1 April 1961 - just in time for the next general election campaign. Studios were built, equipment ordered, and several million Marks had been invested and over 500 staff already appointed when the Länder Governments, in a joint submission, obtained an injunction from the Federal Constitutional Court in December 1960 that ordered the government to suspend the scheme, pending a fuller examination and judgement by the Court. That judgement, delivered in February 1961, was one of Adenauer's most humiliating defeats, and required the complete abandonment of his plans.

The court ruled that is was a violation of the Grundgesetz for central government to operate or franchise any broadcasting station in its own right. The power to do so rested solely with the Länder for as long as the Grundgesetz was in force, and any attempt to extend central control beyond regulation of the physical infrastructure of broadcasting was a grave violation of the constitution. In its judgement the Constitutional court ruled that broadcasting in general and television in particular was not just a 'medium' through which public opinion was formed, but a prime 'factor' in actually forming that opinion, and as such had to be particularly protected from falling under the sway of central government. Ever since then, all Federal governments in Germany have trod very gingerly whenever reform or legislation that might trespass on the constitutional rights of the Länder is concerned, and this has been very visible in the shaping of the IuKDG and the associated Mediendienste-Staatsvertrag (a name chosen by the Länder partly as an echo and a reminder of the Rundfunkstaatsvertrag which enshrines the powers of the Länder in television matters). In the meantime, the so called Fernsehstreit had established that there was substantial demand for a second television channel, and a great deal of money had already been invested in equipping the organisation Adenauer had now been instructed to wind up. The way was open for an alternative proposal by the Länder governments to be carried out, and later in 1961 the Länder signed the Staatsvertrag setting up the ZDF.

The "limited frequencies" argument and its practical consequences

In effect, the emergence of the ZDF transmitting throughout Germany meant that from the early 1960's onwards there were substantial technical, as well as legal, obstacles to the development of commercial television in Germany. This was simply because there was not enough airspace left to allow for the terrestrial transmission of a national commercial network, once frequencies for the ZDF had been allocated. That is why commercial television had to wait in Germany until the development of two technologies that allow TV to be distributed to households without using crowded terrestrial frequencies: direct broadcasting by satellite and cable television. And it was as those two technologies began to be delivered in the early 1980's that political moves to allow commercial television in Germany again got under way and once more led to conflicts between Bund and Länder which were to have repercussions on the treatment of on-line provision.

The deployment of cable and satellite technologies

The German Post Office began drawing up plans for installing broad-band cable (that is to say cable capable of conveying a number of television signals without deterioration) in all medium and large size towns in the early 1970's. But these plans were held back by the administrations of Brandt and Schmidt, partly because the SPD was anxious, for both political and cultural reasons, not to foster a medium which would make commercial television feasible and remove the existing technical obstacles to its introduction into Germany. Post Office engineers were allowed to develop plans for a national cabling network, but investment funds for their large-scale implementation were kept scarce. After the FDP switched coalition partners in 1982, however, bringing Helmut Kohl to power as Chancellor and initiating the so called konservative Wende, the cabling programme was put into full swing, and projects for building direct broadcasting satellites were accelerated. All that remained in the way of the development of commercial television was the fact that, after the 1961 Bundesverfassungsgericht judgement, it was plain that only the Länder, not the central government in Bonn, had the power to lay down the legislative conditions and create the supervisory and licensing mechanisms needed to allow commercial broadcasting to get under way. This led to a further protracted spell of political discord over broadcasting, as Länder with different political persuasions took very different lines on what conditions should be placed upon commercial broadcasters. Each Land had to debate and pass its own Landesmediengesetz, providing for every Land a Landesmedienanstalt to supervise commercial broadcasting, and the question of how the planned national coverage of most commercial stations was to be reconciled with the need for each station, thanks to the judgement of the Constitutional Court, to fall under the jurisdiction of one Land or another generated much work for the lawyers, great friction among politicians and increasing frustration among a public - and an advertising industry - that began to ask ever more impatiently why Germany could not find a way of allowing commercial stations of a kind that other European countries had had for decades.

The issue was only finally settled by another Staatsvertrag between all the Länder, the Staatsvertrag zur Neuordnung des Rundfunkwesens, signed in April 1986 (but not fully ratified by all the Lander until the very end of December 1987). Unification made a complete revision of that agreement necessary and it was replaced by the Staatsvertrag über den Rundfunk im vereinten Deutschland signed in August 1991, and subsequently amended on several occasions, the most recent version having come into force on 1 January 1997.

Ownership and programme content in the commercial TV sector : legal provisions

As each Land drew up its own Landesmediengesetz, it became noticeable that the laws proposed by CDU-governed Länder tended to envisage restrictions on the ability of public-service broadcasters to resist competition for viewers from the proposed new private stations, whereas the legislation drafted by SPD-ruled Länder tended to include far-reaching requirements on programme content for commercial channels which might have threatened their economic viability. Arguments over this issue led to appeals to the Bundesverfassungsgericht, which produced important rulings on the matter in 1986, 1987 and 1988 which finally allowed some framework for a common approach by the Länder. In all the Länder, advertisements may not exceed 20% of the daily broadcasting output of a commercial station, and programmes cannot be interrupted for advertising unless their length exceeds one hour (most stations have found more or less ingenious or cheeky ways round this rule, and trying to enforce it keeps the officials of the Landesmedienanstalten very busy). The Landesmediengesetze also require a minimum percentage of programming on commercial stations (the exact figure varies from Land to Land) to be current affairs and news. The Landesmediengesetze, drawing on the Rundfunkstaatsvertrag, also attempt to regulate the ownership of commercial television stations so as to prevent any private concern from obtaining control over either more than one station, or over a station and a significant newspaper or news magazine. This principle has proved as difficult to enforce as it is in the print media. The notion of achieving something like this degree of regulatory powers over on-line services is what led the Länder to resist the Federal Government’s original proposals for legislation concerning the Internet and on-line service provision.

Coping with the Internet

German politicians of all persuasions like to plan long in advance and draw up regulatory schemes that foresee as many future eventualities as possible. That already gave them problems when faced with the explosive development of commercial television in the last few years, but those problems are nothing compared with the need to adapt traditional approaches to media policy to the extraordinary growth of the Internet and of the World Wide Web in particular. While legislators and policy-makers in Germany ponder over what kind of medium the Web is and what sort of regulation it requires and permits, the medium itself spreads and changes at a breathtaking pace. The recent developments that can be followed from the entries on the main resources page show a number of concerns and approaches that have their counterpart in other Western states. But they have certain distinctively German emphases, some rooted in understandable anxieties about political extremism, others stemming from the urge, shared by political leaders and their followers across a wide spectrum, to combine technological innovation with moral and social stability. The complexity of the new German legislation in this area has no parallel in any other country, because it has been shaped by the rival interests of the Bund and the Länder. The initial intention behind IuKDG was to avoid a repetition of the years of disputes that had heralded the start-up of commercial TV in Germany and create a climate in which large investments could and would be made with confidence by commercial providers. That was to have been achieved by treating on-line provision not as a form of broadcasting, which would have required licensing and (Länder-controlled) supervision, but as a simple service industry like any other, subject only to the laws and regulations governing all businesses. The legal problems were to be addressed not by drawing up elaborate regulations for on-line contents but by a set of amendments to existing laws (e.g. those prohibiting the fostering of racial hatred) which simply added references to on-line media to the existing texts of those laws. These proposals were unacceptable to the Länder, who insisted that some aspects of online services were akin to broadcasting and should accordingly be subject to licensing and regulation at Land level. This has led to two parallel legal frameworks, the IuKDG and the Mediendienste-Staatsvertrag, which claim to be dealing with different things: the IuKDG applies to what are called Teledienste (which are made subject to general legislation but not to specific licensing or supervision) while the Mediendienste-Staatsvertrag and the Landesmedienräte empowered to implement applies to Mediendienste. This would be a rather cumbersome, but workable arrangement, if only it was clear where the distinction between Teledienste and Mediendienste was to be drawn. But the distinction is far from clear, and it looks as though legislation that was meant to boost the spread of Internet provision and use in Germany by offering a secure basis for commercial investment is going to enrich no one but the lawyers and may, like the television legislation before it, require repeated appeals to the courts before a clear framework can be established.

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