GERMANY

Expert assessments: Sanctions

This statement is accurate. However, it must be pointed out that because a licensing obligation only exists in the field of broadcasting, a revocation of a license is only possible for (private) broadcasters. There are no revocation procedures when it comes to telemedia services (online media that is not broadcast media), the print press or public service broadcasters; however there are procedures in place to take down or block online services in certain cases. The citation above refers to “media outlets,” which does not seem to be limited to broadcasters only but to other media sectors as well. Hence, while the citation reflects the content of the existing broadcasting regulations, it may exceed the German legal framework for telemedia services and press publications.

Only State Media Authorities are empowered to revoke a license—or, more specifically, that State Media Authority being competent for the respective broadcasting service117—if “the broadcaster has repeatedly and seriously violated its obligations under this Act and has not complied with the instructions of the competent state media authority within the period specified by it.”118 The State Media Authorities are responsible for private broadcasters (national, regional or local) which they have licensed as well as for (illegal) unlicensed private broadcasters and private telemedia (online) services. In Germany, each of the country’s 14 states have their own independent State Media Authority consisting of representatives of socially relevant groups and experts.119 In case of nationwide private broadcasters, the centralised organ of all State Media Authorities for licensing and supervision (ZAK) is competent to decide on infringements and license revocations. The competent State Media Authority will then issue the measure against the broadcaster. In case of youth protection infringements, another centralised organ, the Commission for the Protection of Minors in the Media (KJM) decides on infringements, while the respective State Media Authority will opt for an adequate measure and issue it.

State Media Authorities can revoke a broadcaster’s licenses on both structural and content-related grounds. Structural grounds for a revocation could include breaches of rules against media ownership concentration or cases when the licensee does not fulfill conditions the license contains, e.g. to broadcast a minimum amount of programming every day. Content-related grounds for revocation procedures are based on repeated and serious infringements to the Interstate Treaty on Broadcasting and Telemedia (RStV)120 or the Interstate Treaty on Youth Protection (JMStV).121 Under these treaties, grounds for revocations include breaches to content-related provisions of the European Convention on Transfrontier Television contained in the Interstate Treaty on Broadcasting and Telemedia (RStV),122 and breaches of provisions against impairing the development of children in the Interstate Treaty on Youth Protection (JMStV).123

Measures are applied using a graduated approach, involving “admonition, prohibition, withdrawal and revocation.”124 In case the State Media Authority states decides that there has been a breach of the above mentioned provisions, it is authorised to proceed against the broadcaster, i.e. the license holder which usually is a company or corporation. Hence, sanctions based on violations of the media law will usually be applied against companies, not individual persons (except online services that are provided by private persons). However, punishments based on criminal law are only directed against individuals.

Infringements of criminal law by broadcasters may result in a revocation only if the interstate treaties refer to these prohibitions.125 Infringements of criminal law will regularly result in prosecution by prosecution authorities, not by State Media Authorities. It should be noted that the Interstate Treaty on Youth Protection (JMStV) contains a criminal law provision that may result in prison sentences against the responsible person within the media outlet, usually the individual journalist. Article 23 of the Interstate Treaty on Youth Protection (JMStV) refers to infringements against Article 4 of that law, which specifies illegal content in broadcasting and telemedia services, including displaying Nazi insignias, inciting hatred, violating human dignity, presenting cruel and inhuman acts, glorifying war, presenting pornographic and violent material, or content harmful to children.126

Regarding “telemedia” services, e.g. online services that are not broadcasting services, there is no licensing requirement. However, Article 59(3) of the Interstate Treaty on Broadcasting and Telemedia (RStV) provides procedures allowing State Media Authorities to order the host to take down a telemedia service after breaches to the treaty’s provisions,127 or for breaches of provisions on protection of minors in the Interstate Treaty on Youth Protection.128 However, these procedures are first aimed at content providers, in the form of an order to cease the infringing content. If the enforcement against the content provider is not possible or successful, the State Media Authorities are allowed to issue orders against the host provider. In case this does not succeed, the authorities are allowed to issue blocking orders against access providers. These procedures are not comparable with license revocations, however, as the content provider only has to delete the infringing content to stop any further sanctioning procedures, while a license revocation aims at ceasing all publication activities of the respective media outlet. Moreover, according to Article 59(3) of the Interstate Treaty on Broadcasting and Telemedia (RStV) content “must not be prohibited if the measure is disproportionate in relation to the relevance of the offer to the provider and the general public.” The treaty also privileges professionally edited online news sites; as such, procedures to take down a telemedia service are only possible pursuant to a decision by a judge/court.

When it comes to identifying breaches, there are no other organisations in the field of common media law, except in the field of youth protection, where a system of regulated self-regulation (or co-regulation) has been implemented. Within the scope of the Interstate Treaty on Youth Protection, there are several bodies that also monitor these breaches. These include the self-regulatory bodies for television (FSF) and multimedia services (FSM) , as well as jugend-schutz.net, a body supporting the activities of the central organ of all State Media Authorities in the field of youth protection, and the Commission for the Protection of Minors in the Media (KJM). However, only the KJM has state sanctioning powers against infringing broadcasters and telemedia services.

The above mentioned provisions are of course regulations that can be seen as quite restrictive when it comes to media freedom. However, as the grounds for proceedings against broadcasters are clearly stated in the interstate treaties and media laws, and all sanctioning measures are open to judicial review, infringements of constitutionally guaranteed freedoms of media outlets are unlikely. Hence, most of the grounds for sanctioning/revoking have not been controversial or publicly criticised. In recent years, only one nationwide case of license revocation has occurred, as well as several regional cases, all for violations of technical rules, such as airing programs not specified in the license or failure to use frequencies.

116 “Criticism 1,” 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 117 For revocation procedures, see Article 29 of the Interstate Treaty on Broadcasting and Telemedia (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. 118 As specified in Article 21 of the Interstate Treaty on Media between Hamburg and Schleswig-Holstein (Medienstaatsvertrag Hamburg Schleswig-Holstein - MStV HH SH), 13th June 2006, in the version of the third Interstate Treaty amending the Interstate Treaty on Media between Hamburg and Schleswig-Holstein dated 30th June 2009, HmbGVBl. S. 357, GVOBl. Schl.-H. S. 636; available in German at: http://www.ma-hsh.de/cms/upload/downloads/Rechtsvorschriften/3._MStV_Internet.pdf; translation by author. 119 Berlin and Brandenburg as well as Hamburg ans Schleswig-Holstein have a common State Media Authority. 120 Interstate Treaty on Broadcasting and Telemedia (the “Interstate Broadcasting Treaty” - RStV), in the version of the 13th Amendment to the Interstate Broadcasting Treaties, entry into force 1 April 2010, available in English at: http://www.kjm-online.de/files/pdf1/RStV_13_english.pdf. 121 Interstate Treaty on the Protection of Human Dignity and the Protection of Minors in Broadcasting and in Telemedia (hereafter the “Interstate Treaty on Youth Protection” – JMStV), September 2002 in the version of the 11th Treaty for amending the Interstate Treaties with regard to broadcasting law (13th Interstate Broadcasting Treaty) entry into force 1 April 2010. Unofficial English translation for information purposes only: http://www.die-medienanstalten.de/fileadmin/Download/Rechtsgrundlagen/Gesetze_aktuell/_JMStV_Stand_13_RStV_mit_Titel_english.pdf. 122 Interstate Broadcasting Treaty (RStV), Article 4(5), Article 20(4), Article 29, Article 38(2), Article 38(4), translation by the State Media Authorities for information purposes only, available at: http://www.kjm-online.de/files/pdf1/RStV_13_english.pdf. 123 Interstate Treaty on Broadcasting and Telemedia (RStV), Article 38(2)(b), translation by the State Media Authorities for information purposes only, available at: http://www.kjm-online.de/files/pdf1/RStV_13_english.pdf. 124 Interstate Treaty on Broadcasting and Telemedia (RStV), Article 38(2), translation by the State Media Authorities for information purposes only, available at: http://www.kjm-online.de/files/pdf1/RStV_13_english.pdf. 125 Interstate Treaty on Youth Protection (JMStV), Article 4, translation by the State Media Authorities for information purposes only, available at http://www.die-medienanstalten.de/fileadmin/Download/Rechtsgrundlagen/Gesetze_aktuell/_JMStV_Stand_13_RStV_mit_Titel_english.pdf. 126 Interstate Treaty on Broadcasting and Telemedia (RStV), Article 4, translation by the State Media Authorities for information purposes only, available at: http://www.kjm-online.de/files/pdf1/RStV_13_english.pdf. 127 Interstate Treaty on Broadcasting and Telemedia (RStV), Article 4(5), Article 20(4), Article 29, Article 38(2); Article 38(4), translation by the State Media Authorities for information purposes only, available at: http://www.kjm-online.de/files/pdf1/RStV_13_english.pdf. 128 Interstate Treaty on Broadcasting and Telemedia (RStV), Article 38(2)b, translation by the State Media Authorities for information purposes only, available at: http://www.kjm-online.de/files/pdf1/RStV_13_english.pdf.