GERMANY

Expert assessments: Sanctions

The statement regarding fines for breaching child-protection regulations is accurate; German law in fact stipulates other infringements by private broadcasters and online media for which a fine of as much as EUR 500,000 can be imposed. However, fines for such breaches are not foreseen for public service media. Editors of these (and all) media are bound to comply with strict child-protection regulations in the criminal code.111 There are also several provisions that mitigate how fines are assessed. First, State Media Authorities are obliged to give several warnings before giving the maximum sanction, and if such a fine were to be levied, it could be appealed in a regular administrative court. Second, State Media Authorities are bound to common administrative law and principles when it comes to determining the height of fines. For this reason, a sanction of EUR 500,000 is formally foreseen in media law but it has never been issued thus far and quite likely never will be. Furthermore, stipulations in the law on youth protection provide extra protection for news content. These stipulations, especially in the case of online activities, provide an additional safeguard for media freedom.

Provisions stating the amount of possible fines can be found both in the Interstate Treaty on Youth Protection (JMStV)112 as well as in the Interstate Treaty on Broadcasting and Telemedia (RStV).113 According to Article 24 of the Interstate Treaty on Youth Protection (JMStV): “A provider commits an administrative offence if the provider, either intentionally or through negligence [...] transmits broadcasting programmes which are assumed to be suited to impair the development of minors pursuant to Article 5(2) …The administrative offence may be penalised by a fine of up to EUR 500,000.”

Article 49 of the Interstate Treaty on Broadcasting and Telemedia (RStV) stipulates that penalties issued by State Media Authorities are not restricted to breaches of youth protection provisions, but to almost all areas of broadcasting regulation, such as advertising rules, media concentration rules, interoperability provisions, etc. Any other breach not mentioned in Article 24 of the Interstate Treaty on Youth Protection (JMStV) or Article 49 of the Interstate Treaty on Broadcasting and Telemedia (RStV) cannot result in fines on the basis of these laws.

In practice, a sanction of EUR 500,000 would be an extraordinary measure in Germany’s media regulatory system. The infringement would have to be severe, continuous and clearly intentional. Before penalty fines are issued, State Media Authorities are obliged to use softer measures; this principle of graduated sanctioning starts with a formal objection, an order of omission and—in case of continuous breaches—fines, followed by a possible temporary suspension of license and, as a last measure, the revocation of the license.

The competence for determining the size of the fine lies with the respective State Media Authority. It has to consider common law provisions for administrative sanctions, including the rule of law and proportionality. Formal criteria for assessing the size of the sanction—based on the relevance of the infringement, the gravity of accusation and the severity of the contravention (intention versus negligence)—are outlined in the Administrative Offences Act.114 In cases of negligence, for instance, the State Media Authority may not assess a fine higher than EUR 250,000.115 Although a fine of EUR 500,000 has not been imposed by any State Media Authority to date, there have been many instances in which a State Media Authority issued lower fines against broadcasters or telemedia services for breaches to child-protection regulations. In February 2007, for instance, the higher Regional Court in Celle confirmed the legitimacy of two penalty notices against a telemedia service provider for publishing images of minors posing unnaturally. (The fines were EUR 3,000 and EUR 7,000, respectively). Recipients of penalty notices are free to raise a formal objection with the relevant state media authority. If the penalty is confirmed, it can then be subject to judicial review.

Regarding online press publications, Article 5(6) in the Interstate Treaty on Youth Protection (JMStV) contains a wide privilege for news coverage regarding the protection minors regulations: “Paragraph (1) above shall not apply to news broadcasts, current affairs broadcasting and similar content available as telemedia to the extent that a justifiable interest in this specific type of presentation or report exists.” This means that, even if content could impair minors, providers of news content are not obliged to implement technical measures (e.g. age verification systems or ID checks) to prevent access for minors. Hence, infringements of youth protection provisions in the area of impairing content result in the shift of the burden of proof: The State Media Authority has to prove that the (harmful) form of reporting is not justifiable.

As noted, decisions by State Media Authorities can be appealed in administrative court. According to general administrative laws, both the objection against the regulatory body issuing the administrative act as well as the plea for annulment before a court have a suspensive effect. The regulatory body can rule that the administrative act comes into force immediately. In this case, the suspensive effect does not take place. However, the party affected can plea for annulment of that decision before a court. Further appeals against the decisions of the administrative court are also possible. The next higher court responsible for these appeals are the administrative appeals tribunals (Oberverwaltungsgericht) as well as the higher administrative courts (Verwaltungsgerichtshof). In case of a possible infringement of basic rights by the highest court decision, there is the possibility for a constitutional complaint at the federal Constitutional Court.

110 “Criticism 17,” in “Criticisms and answers formulated on the subject of the proposed media act examined in a European context,” Ministry of Public Administration and Justice, December 20, 2010, available at:http://www.kormany.hu/en/ministry-of-public-administration-and-justice/news/criticisms-and-answers-formulated-on-the-subject-of-the-proposed-media-act-examined-in-a-european-context 111 The responsible person of an infringing publication may be sent to prison for up to one year if the publication contains content that is forbidden by the law, e.g. violent, animal or child pornography, racism or glorification of violence, according to the Protection of Young Persons Act (Jugendschutzgesetz - JuSchG), 23rd July 2002, Federal Law Gazette BGBl. I, p. 2730, 2003 I, p. 476, last amendment by Article 3, Act of 31st October 2008, Gazette I, p. 2149. Available at http://www.kjm-online.de/files/pdf1/JuSchG_2008_english.pdf. This punishment is also stipulated in the Criminal Code. 112 Interstate Treaty on the Protection of Human Dignity and the Protection of Minors in Broadcasting and in Telemedia (hereafter the “Interstate Treaty on the Protection of Minors” - JMStV), dated 10th to 27th September 2002, in the version of the 11th Treaty for amending the Interstate Treaties with regard to broadcasting law (13th Interstate Broadcasting Treaty) in force since 1 April 2010; translation by the State Media Authorities for information purposes only, available at: http://www.kjm-online.de/files/pdf1/_JMStV_Stand_13_RStV_mit_Titel_english.pdf. 113 Interstate Treaty on Broadcasting and Telemedia (hereafter the “Interstate Broadcasting Treaty” - RStV) in the version of the 13th Amendment to the Interstate Broadcasting Treaties, entry into force 1 April 2010; translation by the State Media Authorities for information purposes only, available at http://www.die-medienanstalten.de/fileadmin/Download/Rechtsgrundlagen/Gesetze_aktuell/13._RStV-englisch.pdf. 114 See cf. Article 17(3) of the Administrative Offences Act (Gesetz über Ordnungswidrigkeiten - OWiG), dated 19th February 1987 (BGBl. I S. 602), last revised by Article 2 of the Law dated 29th July 2009 (BGBl. I S. 2353), available in German at http://bundesrecht.juris.de/owig_1968/BJNR004810968.html. 115 See cf. Article 17(2) in the Administrative Offences Act (Gesetz über Ordnungswidrigkeiten - OWiG), dated 19th February 1987 (BGBl. I S. 602), last revised by Article 2 of the Law dated 29th July 2009 (BGBl. I S. 2353), available in German at http://bundesrecht.juris.de/owig_1968/BJNR004810968.html.