- BVerfGE 74, 297 1 BvR 147, 478/86 5. Rundfunkurteil "Fifth Broadcasting Case (Baden-Württemberg Private Broadcasting Case)"
- 24 March 1987
- Dr. Herzog, Dr. Simon, Dr. Hesse, Dr. Katzenstein, Dr. Niemeyer, Dr. Heußner, Dr. Henschel, Dr. Seidl.
- © Nomos Verlagsgesellschaft
1. The constitutional guarantee of freedom of broadcasting in principle prohibits the legislature from forbidding the production of particular broadcast programmes and communication services of a similar nature to broadcasting, or from taking other measures which curtail the possibility of making contributions to the formation of opinion disseminated through broadcasting. Over and above the basic provision through public-law corporations (BVerfGE 73, 118 [157 f.]), the legislator is therefore forbidden from reserving production of these programmes and services exclusively to private suppliers.
2. Insofar as the Baden-Württemberg Land Media Act excludes broadcasting corporations of the Land from producing regional and local broadcast programmes (para.13(2), first and second sentences) and makes the production of sound and motion picture services on call subject to special permission by Act or State Charter (para.45(2)), this is incompatible with Article 5(1), second sentence, GG.
By contrast, there is no constitutional objection to
a) the ban on advertising in public-law regional and local broadcasting (para.13(2), fourth sentence, LMedienG),
b) the provision for special licensing by statute or State Charter for broadcast programmes of Land broadcasting corporations that remain reserved to subscribers or payers of individual fees (para. 13(3) LMedienG),
c) the restrictions on cooperation between private broadcast producers and public broadcasting corporations (para.13(4) LMedienG),
d) the obligation on Land broadcasting corporations to make free videotext capacities on their programmes available to private providers (para.44(3) LMedienG).
Order of the First Panel of 24 March 1981 1 BvR 147, 478/86
in the proceedings on the constitutional complaints of
1. the Süddeutscher Rundfunk, an incorporated public-law institution, represented by Director Professor Dr. Hans Bausch, Neckarstrasse 230, Stuttgart 1, - Attorneys: Advocates Prof. Dr. Rüdiger Zuck and Dr. Michael Quass,
Robert-Koch-Strasse 2, Stuttgart 80 - against para. 5(1), first and third sentences, (2); para. 7; para. 10(1) and (2); para. 13(2), (3) and (4) of the Baden-Württemberg Land Media Act (LMedienG) of 16 December 1985 (GBl. p.539) - 1 BvR 147/86 -,
2. the Südwestfunk, an incorporated public-law institution, represented by Director Willibald Hilf, Hans-Bredow-Strasse, Baden-Baden, - Attorney Prof. Dr. Friedrich Kübler, Burgenblick 5, Königstein - against para. 5(1), first and second sentences, (2); para. 7; para. 10(2); para. 13(2), first, second and fourth sentences, (3) and (4); para. 44(3); para. 45(2); para. 46(2) taken together with para. 23(2) No. 4 of the Baden-Württemberg Land Media Act (LMedienG) of 16 December 1985(GBl. p.539) - 1 BvR 478/86 -.
1. Para. 13(2), first sentence, of the Baden-Württemberg Land Media Act (LMedienG) of 16 December 1985(Law Gazette p.539) is incompatible with Article 5(1), second sentence, of the Basic Law, insofar as it excludes the production and dissemination of broadcast programmes of Land broadcasting corporations not produced and disseminated for the whole of their transmission area in the Land.
2. Para.13(2), second sentence, of the Land Media Act is incompatible with Article 5(1), second sentence, of the Basic Law and is null and void, to the extent that it forbids the production and dissemination of other broadcast programmes of Land broadcasting corporations not already in existence on 31 December 1984.
3. Para. 45(2) of the Land Media Act is incompatible with Article 5(1), second sentence, of the Basic Law and is null and void.
Para.13(2), fourth sentence, para.13(4) and para.44(3) of the Land Media Act are compatible with the Basic Law. The same applies, in accordance with the grounds, to para.13(3) of the Land Media Act.
Complainant no.1 has the fundamental right under Article 5(1), second sentence, of the Basic Law infringed by the Land Media Act to the extent apparent from I (1) and (2) above, and complainant no.2 as in I (1) - (3).
Otherwise, the constitutional complaints are dismissed.
Land Baden-Württemberg shall reimburse half the necessary costs to the complainants.
EXTRACT FROM GROUNDS:
The object of the constitutional complaints is essentially the question whether it is compatible with the Basic Law, in the context of the dual broadcasting system at present emerging, to exclude public broadcasting corporations from producing particular broadcast programmes and communications services similar to broadcasting, and to reserve these to private bidders alone, even though perhaps only for a transitional period.
The Baden-Württemberg Land Media Act (LMedienG), which entered into force on 1 January 1986, creates a framework of regulations for broadcasting (radio and television) and for communications similar to broadcasting (para.1) that largely corresponds to the conceptions in the other new Media Acts of Laender, but partly also goes beyond them.
1. This applies first of all to the provisions on the securing of transmission capacities and freedom of reception, whereby the Act seeks to take account of the new situation of an extension of the range of providers of broadcasting by private suppliers (paras. 3-12 LMedienG). By contrast with the other new Media Acts of Laender, it makes detailed arrangements for allocation of transmission capacities; these are handed out by the Land Institute for Communications, which according to the rules of paras. 6-8 LMedienG shall by legal order set up a utilization plan for wireless frequencies and for cable networks.
For the purposes of the present proceedings, in addition to the regulations of para. 10 LMedienG on free reception on cable network, the following provisions are of importance:
Para. 5 - Utilization Plan
(1) In accordance with the rules of paras. 6-8, the Land Corporation shall by statutory order establish a utilization plan for wireless frequencies and for cable networks. It shall be agreed with the Federal Postal Administration. Laender broadcasting corporations shall be given an opportunity for comment.
(2) The utilization plan shall be designed to allow the expression of a variety of opinions and of desires for information. Utilization at 31 December 1984 shall be taken into account.
(3) . . .
Para. 7 - Assignment for a particular mode of utilization
(1) For initial distribution, wireless frequencies and cable channels for public or private broadcasting and communication similar to broadcasting shall be so assigned that
1. The public broadcasting corporations can carry out their statutory tasks and competing private broadcasters can be allowed, and
2. increasing space can be allowed for communication similar to broadcasting.
(2) For further distribution, cable channels shall be assigned in appropriate proportion for broadcast programmes and communication services similar to broadcasting which are
1. Distributed on wireless under Land law for the territory of the cable network,
2. intended for direct reception by the public and normally receivable in localities in the territory of the cable network, or
3. introduced in accordance with para.11.
The Land Corporation for Communications issued on 19 July 1986 the First Order on a Utilization Plan for broadband distributing networks and wireless frequencies (NutzungsplanVO) (GBl. p.256, ber. p.304). This contains among other things the available frequencies for local (59) and regional (23) broadcasting, in the main available immediately, but at any rate from July 1987. The Corporation has since assigned the first frequencies.
2. While the Public Broadcasting Service is to continue to carry out its existing tasks, the Land Media Act is aimed according to the explanatory statement for the government bill at paving the way in the area of broadcasting particularly for forms of programmes most likely to allow competing producers room to offer a wide range of material. This includes notably regional and local programmes, and programmes specializing in particular types of information, education or entertainment (sectional programmes), and are distributed only to those citizens who have testified to their special interest by concluding a subscription agreement (LTDrucks. 9/955, p.65 f.). These are at least initially to be kept largely free of competition from public broadcasting corporations, in order to give private suppliers a chance to build up their operations (cf. LTDrucks 9/955, p.53 f.). In the interest of a clear separation of areas of responsibility, cooperation between private suppliers and public broadcasting corporations is to be limited (LTDrucks 9/955, p.82). These principles and objectives of the Act are furthered by the following provisions:
Para. 13 - Continued validity of the Broadcasting Act
(1) For broadcast programmes of the Land Broadcasting Corporations, the provisions laid down in statutes and State Charters shall continue to apply.
(2) Broadcast programmes of the Land Broadcasting Corporations shall be produced and disseminated for their whole transmitting area in the Land. Other broadcast programmes of the Land Broadcasting Corporations may be produced and disseminated to the extent they were on 31 December 1984. Improvement of reception possibilities in the existing area of dissemination is not ruled out. Advertising in broadcast programmes pursuant to the second sentence above is inadmissible.
(3) Broadcast programmes reserved to subscribers or those making a one-off payment may be produced and disseminated by the Land Broadcasting Corporations where this is specifically allowed by statute or State Charter.
(4) Private broadcasting producers may cooperate with public broadcasting corporations by
1. Producing individual sound and motion picture transmissions jointly with them and
2. having transmissions or parts of programmes made available to them by public broadcasting corporations, or taking them from them.
The production and dissemination of regional and local programmes is accordingly in principle prohibited to Land Broadcasting Corporations, so that they can no longer continue to pursue their regionalization plans (on which see: Süddeutscher Rundfunk, Regionalisierung im Hoerfunk, Südfunk-Hefte 11(1985); Teichert, Rundfunk fuer die Region, 1981). Exceptions are the programmes "Radio Stuttgart" with barely one hour, and "Radio Kurpfalz" and "Ulmer Schwabenradio" with two hours each, of radio programming on the Süddeutscher Rundfunk, which come under Clause 2, second sentence. Extensions to the times of these programmes made after 31 December 1984 had in accordance with the statutory provisions to be reversed. Insofar as this obligation concerned Radio Stuttgart's Early Magazine, transmitted since January 1985 on Mondays to Fridays from 5.30 a.m. to 8.30 a.m., the Federal Constitutional Court set it aside by temporary order of 3 January 1986, pending decision on the constitutional complaint by the Süddeutscher Rundfunk (BVerfGE 71, 350).
The restriction on cooperation by para.13(4) LMedienG rules out collaboration between private and public broadcasting producers, as had come about on the basis of an agreement by the Land Broadcasting Corporations with the Association of South-West German Newspaper Publishers in the local experiments "Stadtradio Freiburg" and "Stadtradio Ulm". These experiments could pursuant to para.86 LMedienG initially be continued with. They have since been terminated.
For the arrangements of para.13(2) and (3) LMedienG, the Act provides for later review: pursuant to para.88(2) (4)-(5) LMedienG, the Land government shall by at latest four years following entry into force of the Act present the Landtag with a report, based on a report by the corporation, on experiences of application of the Act and in particular whether it is necessary, for a balanced provision of broadcast programmes to the population, to allow the Land Broadcasting Corporations to produce regional and local programmes, and whether it is necessary in order to carry out the statutory tasks of the Land Broadcasting Corporations to allow them to produce broadcast programmes on subscription or one-off payment.
3. As with the programmes mention in para.13(2) and (3) LMedienG, according to the explanatory statement accompanying the Government Bill the Land Media Act is aimed at opening up futureoriented communications services similar to broadcasting, in particular new types of call services, for large numbers of suppliers, in accordance with the principles of free competition. The Public Broadcasting Corporations should also be among the suppliers, where this is necessary in order for them to be able to continue to perform their task in the general structural shift in the electronic media. However, the Land Media Act reserves structural adjustment of public broadcasting in part for later regulation, in order to give private suppliers an initial chance (LTDrucks. 9/955, p.65 f.).
Among communications similar to broadcasting within the meaning of the Act are in particular the production and dissemination of transmissions with texts, still prictures, moving pictures, musical and speech presentations which are either conveyed to anyone on call from an electronic store, or else disseminated in rapid succession in such a way that everyone can have access to each individual piece of information (cf. para. 1(3) LMedienG). And going beyond the recent Land Media Acts in this respect too, this Land Media Act governs these services in its 6th Section (paras.33 ff.), separately for text services (paras. 38 ff.) and sound and motion picture services (paras. 45 ff); here too it provides for later review of whether new technical developments make additional or different regulations necessary (para.88(2) (3) LMedienG).
Among services to be counted among text services is videotext. This is an information system able to transmit text and simple graphics on the "vertical blank gap" sent along with every television picture signal, which can then be made to appear on the receiver's screen using a decoder or a videotext-capable television set. This system allows programme-related or other information to be transmitted to a limited extent. By contrast, sound and motion picture services on call or access are at present not yet feasible, since the necessary technical installations for their transmission are not present.
The provisions of the Land Media Act for services similar to broadcasting depart from those on the production and dissemination of broadcast transmissions. For the production of these services by the Land Broadcasting Corporations, restrictions apply: they may produce videotext only insofar as it provides information on their television and radio programmes or ancillary and supplementary information on the programmes (para.44(1) taken together with para.39(2) LMedienG). Unused capacities must be made available by the corporations - by contrast with private suppliers - to private interested parties (para.44(3) LMedienG). Sound and motion picture services on call may be produced only after securing permission by statute or State Charter (para.45(2) LMedienG); for those on access, no regulation is made. The decisive provisions are the following:
Para. 44 - Videotext
(1) The producer of a television programme may himself use the empty lines in the television signal to produce videotext within the limits of para. 39(2).
(2) Should the producer of a television programme wish to leave the use of the empty lines on the television signal to other producers, access on an equal-opportunity basis is to be guaranteed, by appropriate application of para. 43(3).
(3) Where the Land Broadcasting Corporations do not themselves use the empty lines in the television signal of their television programmes in accordance with Clause 1, they shall make the free capacity available to other producers in accordance with the provisions of Clause 2.
(4) . . .
Para. 45 - Sound and motion picture services on call
(1) . . .
(2) The Land Broadcasting Corporations may produce sound and motion picture services on call where this is especially permitted by statute or State Charter.
Para.46 - Sound and motion picture services to demand.
(1) The producer of a sound and motion picture service on access must secure permission. Permission will be granted where the personal and objective conditions are met.
(2) Of the regulations on private broadcasting, the provision . . . on personal requirements for permission . . . shall apply mutatis mutandis (para.23).
In the constitutional complaints, the complainants oppose the restrictions on their activity which in their view result from the provisions of the Land Media Act described.
1. The constitutional complaint of complainant 1 is directed against para.5(1), first and third sentences, (2), para.7, para.10(1) and (2) and para.13(2), (3) and (4) LMedienG. On these the complainant submits essentially the following:
a) He is himself presently and directly affected by the provisions mentioned since they limit his freedom of action and programming without the need of any further implementing acts . . . .
b) aa) The impugned provisions do not meet the requirements of the freedom of broadcasting guaranteed by Article 5(1) GG. This is said to contain a functional guarantee for public broadcasting corporations covering their existence and development. The functionality of broadcasting, and with it the guarantee of the pluralism and comprehensiveness of information, depends for the foreseeable future on the unrestricted guarantee of public broadcasting; private broadcasting could at present merely be seen as an additional offer. The legislator was therefore prohibited from handing over public broadcasting functions to the market. Because of its comprehensive public service mandate, public broadcasting could not be limited to basic provision either; instead, it must play a part in new development in the broadcasting area too. From these viewpoints of equality, a restriction of this functional guarantee in favour of private producers was not appropriate . . . [Sections bb) and cc) contain further details on this].
2. Complainant 2 opposes para. 5(1), first and second sentences and (2), para.7, para.10(2), para.13(2), first, second and fourth sentences, (3) and (4), para.44(3), para.45(2) and para.46(2) taken together with para.23(2) No.4 LMedienG. He also regards the constitutional complaint as admissible. On the substantive legal position, he states essentially the following:
a) The legislature should guarantee the existence and development of the public broadcasting corporation's until such time as a model for private broadcasting that is in conformity with the constitution comes into being. This sort of model is not achieved by the Land Media Act. The Baden-Württemberg legislature itself sees private broadcasting purely as an additional offer, the shortcomings of which can be made up only through the continued existence of public broadcasting, but on the other hand excludes public broadcasting from particular programme areas in favour of private suppliers, without guaranteeing the constitutionality of the private offers.
b) Accordingly, the impugned provisions are regarded as unconstitutional . . . [more detailed account in Sections c-e].
The government of Land Baden-Württemberg joined the action on the constitutional complaint by the Süddeutscher Rundfunk. On behalf of the Federal Government, the Federal Minister for the Interior made a statement on the constitutional complaint. A position was also taken by the Baden-Württemberg Landtag, the Association of Public Broadcasting Corporations of the Federal Republic of Germany (ARD), the second German television channel (ZDF), the Cable Communications Corporation, Ludwigshafen, the Bavarian Land Centre for New Media, the Federal Association of German Newspaper Publishers e.v., the Association of German Magazine Publishers e.v. and the Federal Association for Cable and Satellite e.v.
1. In the view of the government of Land Baden-Württemberg, there are reservations regarding admissibility of the constitutional complaints insofar as they are directed against the provisions of the Frequency Utilization Plan and complain of infringement of rights of participants in broadcasting. In any case, the constitutional complaints are regarded as totally unjustified . . . [detailed argumentation].
2. In the view of the Federal Government there are no constitutional objections to the impugned provisions of the Land Media Act [detailed justification].
3. The Landtag of Baden-Württemberg regards the constitutional complaints as in part in any case inadmissible. At any rate, they are regarded as unjustified . . . [argumentation].
4. a) The ARD regards the impugned provisions as unconstitutional and also sees itself as having its freedom of action limited by them . . . [argumentation].
b) In the view of the ZDF, the limitations on programme content and on participation in modern technical developments imposed by the Land Media Act on public broadcasting corporations are in contradiction with the broad concept of broadcasting on which both the State Charter for the ZDF and the State Charter on regulation of broadcasting fees are based .
. . .
5. The Cable Communications Corporation, the Federal Association of German Newspaper Publishers, the Association of German Magazine Publishers and the Federal Association for Cable and Satellite support the constitutional complaints in their petitions . . . The Bavarian Land Centre for New Media confined itself to descriptions of the technical development in dissemination of broadcast programmes and on the organization's experience with broadcasting involving private programme suppliers .
. . .
As legal persons under public law, which are to be reckoned as being in the area protected by a fundamental right (BVerfGE 21, 362 ), the complainants can through constitutional complaint assert infringement of broadcasting freedom (BVerfGE 31, 314  - turnover tax; 59, 231  - freelance broadcasting workers). Their constitutional complaints are however only in part admissible.
The admissibility of a constitutional complaint against an Act presupposes, according to the Federal Constitutional Court's consistent case law, that the complainant himself have fundamental rights presently and directly affected by the legal norm impugned (BVerfGE 1, 97 [101 ff.]; 72, 39 ). This is the case insofar as the complainants oppose their exclusion from producing the programmes mentioned in Para.13(2) and (3) LMedienG, the ban on advertising in these programmes (para.13(2), fourth sentence, LMedienG) and the restrictions on cooperation in para.13(4) LMedienG. The constitutional complaint of complainant 2 against the provisions of paras.44(3), 45(2) and 46(2) taken together with para.23(2) (4) LMedienG is also admissible . . . [detailed argumentation].
Insofar as the constitutional complaints are directed against the provisions in para.5(1) and (2), para.7 and para.10(1) and (2) LMedienG on the utilization plan and on free reception over a cable network they are inadmissible. The complainants are not directly affected by these provisions . . . [argumentation].
Insofar as the constitutional complaints are directed against the exclusion of the complainants from producing regional and local broadcasting (para.13(2), first and second sentences, LMedienG) and against the reservation of special permission by Act or State Charter for sound and moving picture services on call (para.45(2) LMedienG), they are justified. In other respects they are unjustified: para.13(2), fourth sentence, para.13(4) and para.44(3) LMedienG are constitutionally unobjectionable; this is also true of para.13(2) LMedienG as long as it is interpreted properly, in conformity with the Constitution. Para.46(2) LMedienG does not interfere with rights of the public broadcasting corporations.
A decisive aspect for the constitutional evaluation is the freedom of broadcasting guaranteed by Article 5(1), second sentence, GG.
The freedom of broadcasting serves the same object as all the guarantees of Article 5(1) GG: the guaranteeing of free formation of individual and public opinion, in a comprehensive sense not confined to mere reporting or the conveying of political opinions (BVerfGE 57, 295  with further references - private broadcasting in the Saarland; 59, 231 [257 f.]; 73, 118  - Lower Saxon Land Broadcasting Act). Free formation of opinion takes place in a process of communication. It presupposes on the one hand the freedom to express and disseminate opinions and on the other freedom to acquaint oneself with opinions expressed, to inform oneself. Article 5(1) GG, by guaranteeing freedom of expression of opinion, of dissemination of opinion and of information as human rights seeks at the same time to protect this process constitutionally. It therefore establishes subjective rights; in connection with these it establishes freedom of opinion as an objective principle of the whole legal system, in which elements of subjective and objective right interpenetrate and support each other (cf. BVerfGE 7, 198  - Lüth).
Broadcasting is a "medium" and "factor" of this constitutionally protected process (BVerfGE 12, 205  - Deutschland-Fernsehen). Accordingly, freedom of broadcasting is primarily a freedom that serves the freedom of formation of opinion in its elements of subjective and objective right: in conditions of modern mass communications, it constitutes a necessary supplementation and consolidation of this freedom; it serves the object of guaranteeing free, comprehensive formation of opinion through broadcasting (BVerfGE 57, 295 [319 f.].
This requires, firstly, the freedom of broadcasting from State control and influence. Additionally, the guarantee requires a positive order that guarantees that the multiplicity of existing opinions find expression in broadcasting in the greatest possible breadth and completeness, and that in this way comprehensive information is offered. In order to secure this, substantive, organizational and procedural arrangements are necessary which are oriented towards the object of freedom of broadcasting and therefore suitable for bringing about what Article 5(1) GG is intended to guarantee. How the legislator is to meet this object is - within the limits drawn by the guarantee - a matter for his own decision. The point is solely to ensure that free and comprehensive opinion-formation in conformity with the truth is guaranteed in the sense set forth (BVerfGE 57, 295 ; 73, 118 [152 f.]).
The constitutional precepts may, as the Federal Constitutional Court decided in a judgment of 4 November 1986 (BVerfGE 73, 118 [157 ff.]), in conditions of present developments and those foreseeable for the near future, also be met by a dual system of broadcasting as is at present emerging in the majority of German Federal Laender.
In this system, the indispensable "basic provision" is a matter for the public broadcasting corporations: with the expansion of broadcasting on offer, with privately produced and European programmes, the need is to ensure that the classical task of broadcasting is met; this includes not only its role in the formation of opinion and political will, entertainment and information that goes beyond current reporting, but also its cultural responsibility. The tasks therefore imposed on it make it necessary to guarantee the technical, organizational, personal and financial conditions for them to be carried out.
So long as and to the extent that the carrying out of these tasks is effectively guaranteed at least by public broadcasting, it seems justified not to place as high requirements on the breadth of programmes offered and guarantees of impartial pluralism in private broadcasting as in public broadcasting. The measures the legislator has to take must nevertheless be defined and appropriate in order to secure as great as possible a degree of balanced pluralism in private broadcasting and to guarantee it.
Insofar as the provisions of para. 13(2), first and second sentences, LMedienG exclude the complainants from the producing of regional and local broadcast programmes, they infringe Art. 5(1), second sentence, GG.
1. This does not, to be sure, follow merely from the fact that the Land Media Act does not provide for any basic provision in the regional and local area by the Land broadcasting corporations.
a) The term basic provision was used by the Federal Constitutional Court in the judgment of 4 November 1986 to describe broadcasting tasks that must also and essentially be carried out in the dual system of broadcasting arising on the basis of the new Land Media Act and must be effectively guaranteed at least by the public broadcasting corporations (I. above): it must in principle be ensured that for the whole of the population, programmes are offered that provide information comprehensively and to the full breadth of the classical broadcasting mandate, and that plurality of opinions is guaranteed in the constitutionally proper fashion (BVerfGE 73, 118 [157 f.]). As clearly emerges from the descriptions here, the term does not denote a minimum provision to which public broadcasting is confined or could be reduced without consequences for the requirements to be placed on private broadcasting. Nor is there to be any drawing of boundaries or division of tasks between public and private broadcasting, for instance in such a way that programmes or transmissions that are to be counted part of the basic provision are reserved or could be reserved to public broadcasting and all others to private broadcasting. Instead, the judgment of 4 November 1986 makes three elements essential: a transmission technique whereby reception of transmissions is guaranteed for all and therefore for the moment the traditional terrestrial technique (BVerfGE 73, 118 ); further, the standard of content of programmes, in the sense of a range which by subject and nature of presentation or treatment meets the broadcasting mandate described, not merely in part but in full; finally, the effective guaranteeing of balanced plurality in the presentation of existing trends of opinion, through organizational and procedural provisions.
Which programmes of public broadcasting corporations in detail belong to the essential basic provision did not need to be decided in the judgment of 4 November 1986, any more than in the present case. The question cannot in any case be answered in isolation for individual programmes or parts of programmes from these corporations, since basic provision always presupposes a multiplicity of programmes. The Federal Constitutional Court took it in the judgment of 4 November 1986 that at least the stock of terrestrially disseminated public programmes at the time of that judgment was to be counted part of the essential basic provision.
b) Taking the requirements described as a basic, para.13(2), first and second sentences, LMedienG cannot be objected to from the viewpoint of necessary, but absent, basic provision, insofar as - and this is the only point at issue - the issuing of permission to produce regional and local programmes takes place in accordance with para.22 LMedienG.
aa) With an eye to the task of presenting the individual specificity of the regional and local sphere characterized by political, economic and cultural development, no separate provision for this area is necessarily required, in addition to basic Federal or Land provision by the public broadcasting corporations. For the number of possible topics for specifically regional or local transmissions is hardly likely to be so great as on that account to justify the need for a broad, complete offer by the Land broadcasting corporation, going essentially beyond the programmes offered by private producers. Nor could either private or public regional and local programmes fill their transmissions throughout the day with topics of specifically regional or local reference; these would in any case have to be confined to a few hours a day. For programmes for geographically restricted reception without such reference, however, the basic provision is already guaranteed by the programme for the whole Land.
bb) But for regional and local broadcasting too, to which growing importance is rightly attributed, there must certainly be effective guarantees that in them the existing multiplicity of opinions of the narrower geographical area concerned is given expression. To secure this, basic provision would thus be required from the Land broadcasting corporations, were balanced plurality of opinions in regional and local broadcasting not already effectively guaranteed by the statutory system for private broadcasting. The provision on licences to put out private broadcasting applying to the normal case, para.20(1) LMedienG, does not bring about a guarantee of equal value: anyone wishing to put on a full German-language programme or a German language sectional programme aimed in a particular opinion forming direction, in particular a programme with current news, is according to the first sentence of this provision to be allowed to, where a minimum number of competing programmes can be received. In the case of inter-regional programmes the Act sees this minimum number as present where in the area of dissemination, in addition to the programmes of the public broadcasting corporations, at least three other similar German language programmes or parts of programmes are permitted, brought in from the territory to which the Basic Law applies and licensed for further transmission or normally receivable locally; this number is reduced in the case of local and regional programmes to two (second sentence). In regional and local broadcasting, however, in assessing plurality of opinions and cultural plurality - in departure from para.14(3) LMedienG - the programmes of the Land broadcasting institutions produced and distributed throughout the Land do not from the outset count, since they are not "of similar type", that is, regional or local programmes; the same applies to programmes imported, licensed for further transmission and normally receivable locally. Accordingly, even if two other private providers were already to have been licensed, the guarantee of balanced plurality in regional and local broadcasting would lag considerably behind that of the Land broadcasting corporations.
Accordingly, to the extent that private providers are permitted in accordance with the provisions of para. 22(1), (2) and (4) LMedienG, it does not seem necessary for the public broadcasting corporations to take on the task of basic provision in the regional and local area. The Land Media Act has through these provisions taken measures to guarantee balanced plurality that do not in principle fall behind the arrangements applying to public broadcasting corporations and are therefore to be regarded as adequate.
According to the system set up by the Act, to be sure, para.22 LMedienG contains only a back-up solution (cf. Bullinger/Goedel, Landesmediengesetz Baden-Württemberg, Kommentar, 1986, Rdnr. 1 on para.22). The path of this solution is, however, probably the only viable one for regional and local broadcasting and ought therefore to become the rule. Para.22 (1) LMedienG makes admission of private producers possible where there are guarantees that individual forces are not dominant or other highly unbalanced influences exerted on the formation of public opinion through broadcasting in the area of dissemination. Licensing requires assent from the Media Advisory Council (cf. para.65 LMedienG). The requirement mentioned is as a rule seen as being met where the producer is run by representatives of the major trends in opinion in the area of dissemination or offers guarantees both through its organization, in particular by forming a programming council made up of representatives of the major trends in opinion in the area of dissemination and through its programming schemes and programming principles legally offers guarantees that the transmissions will, taken all round, convey a balanced picture of opinion (para.22(2) LMedienG). If these requirements too are not met, then permission can only be given where the producer undertakes to make an appropriate portion of transmission time available in the form of an open channel or in some other way for contributions from trends in opinion not covered by his transmissions, to the extent that this is necessary to guarantee plurality of opinion (para.22(3) LMedienG). Whether the requirements mentioned have been met is to be verified by the Land institution at regular intervals or for any special reason. It has where necessary to take action (para.22(4) LMedienG).
Where permission pursuant to para.22(2) LMedienG is granted, balanced plurality of opinion seems guaranteed by the prescribed organizational programming structure in similar fashion as through the corresponding provisions for public broadcasting. Admittedly, the provision says nothing further as to how the legal guarantees should be. According to the explanatory statement on the government Bill, some flexibility is aimed at here; criteria are to be developed from case to case and further developed in order to be able to decide further details on the basis of experience gained, following a four-year trial period (para.88(2) LMedienG) (LTDrucks. 9/955, p.89 f.). But this does not in any way change the fact that the provision essentially puts equally high requirements on the guaranteeing of plurality of opinion as those in existence for public broadcasting: it does not leave things at a requirement for internal plurality of content, but further requires organizational internal plurality. The producer may in particular follow in his organization the structure of a public broadcasting operation and form an advisory council consisting of representatives of all major social forces, which legally has the power to act to bring about balanced programming (LTDrucks. 9/955, p.89). Organizational internal plurality may also be secured within the framework of a combination of providers - here using the means of company law - where this form of organization guarantees a pluralist influence on programming and is therefore not limited to capital involvement that is neutral as to programming. Additionally, there are the procedural requirements for assent by the pluralistically composed Media Advisory Council on licensing (para.22(1), second sentence, LMedienG) and continuous control by the Land Communications Corporation pursuant to para.22(4) LMedienG.
As against this, para.22(3) LMedienG contains only a means inadequate for the objective: if the producer undertakes to make part of his transmitting time available for otherwise unaccounted-for trends in opinion, this does not mean that these trends in opinion are also actually represented in the programme, and does not at all mean that the whole multiplicity of opinions existing in the region or locality finds the greatest possible breadth and completeness of expression.
The solution in Clauses 1, 2 and 4 does, however, with the criteria set out, meet the requirements that the Federal Constitutional Court has regarded as sufficient for the organization of sole producers of private broadcasting (BVerfGE 73,118 [174 f.]). And the obligation on the producer to provide legal guarantees according to his programming scheme and programming principles that his transmissions as a whole will convey a balanced picture of opinion cannot be left out of account as an assurance.
On the whole, thus, it seems that not only internal plurality of content but also its effective guaranteeing by organizational and procedural provisions for private regional and local programmes seem adequately regulated by para.22(1), (2) and (4) LMedienG. If these provisions are applied in the proper fashion, that is, if account is taken of the requirement for organizational internal plurality and its corresponding pluralistic influence on programming, and if compliance with this requirement is effectively supervised by the Land Corporation, then there is no need, in order to guarantee plurality of opinion, for any similar programmes of the public corporations.
2. The exclusion of Land broadcasting corporations from producing regional and local broadcasting programmes that did not already exist on 1 December 1984 laid down by para.13(2), first and second sentences, LMedienG is however incompatible with Article 5(1), second sentence, GG in another respect: it contravenes the basic principle of free formation of opinion guaranteed in Article 5(1) GG, that broadcasting freedom is to serve (I. above).
a) In the dual system of broadcasting at present emerging on the basis of the new Land Media Acts, supplementation of the existing range offered by public corporations by programmes from private suppliers can have a point only if the addition of further producers and programmes improves broadcasting provision as a whole - even though private broadcasting alone may not under present conditions fully meet the requirements of Article 5(1), second sentence, GG. This sort of improvement depends firstly on a larger number of programmes being offered, since this increases the chance of more multiplicity of content. Secondly, competition among these programmes comes into it. The coexistence of public and private broadcasting is based (amog other things) on the idea that journalistic competition between the two will operate to stimulate and vitalize the total range offered in the country, thereby enhancing and extending plurality of opinion. But it is not compatible with this for private broadcasting to be assigned the task of journalistic competition with public broadcasting, but denying public broadcasting such competition against private broadcasting: free, comprehensive formation of opinion in accordance with truth depends on those involved in the process not being deprived of information and on opinions having to submit to debate with other opinions, through which they either assert themselves or must be corrected; prohibitions on contributions to intellectual debate have never been able to guarantee, far less promote, freedom of opinion. If, accordingly, it is a task of broadcasting freedom to permit and protect free formation of opinion, then the guarantee in principle bars the legislature from prohibiting the production of particular broadcasting programmes or taking other measures that curtail the possibility of making broadcast-disseminated contributions to the formation of opinion. Even over and above the basic provision by public broadcasting, the legislator has in principle to allow the free production of broadcast programmes on the same terms.
To that extent, the programmes of public broadcasting contribute to the enrichment and variety of programmes on offer; they permit and extend journalistic competition as a vital element in freedom of opinion. Where frequencies or channels are scarce, while they cannot claim any primacy, they can claim the same right as the programmes of other broadcasting producers, and just as for these, the possibility must exist for public broadcasting corporations to finance such programmes.
For broadcasting in the regional and local sphere, the principle just presented is of particular importance. In this sphere the number of suppliers of contributions in press or broadcasting that relate to the region or locality is considerably lower than in the inter-regional sphere; often, if not as a rule, there will be only one newspaper, with in favourable cases one other regional or local broadcast programme not produced by a local newspaper publisher. Forbidding public regional and local programmes given this state of affairs thus means nothing other than largely or even entirely preventing effective journalistic competition.
It cannot be objected to this that regional and local programmes could in any case only offer an equal breadth of programme range and the same basic structure, so that a public programme cannot add anything essential to private programmes; moreover, the internal plurality of these programmes is legally guaranteed (cf. 1 b above). Even if the breadth and structure of the programmes as a whole correspond, the mode of presentation and treatment of themes may yet essentially differ. It would be remote from all reality to assume that a number of programmes from producers organized with internal plurality would not produce substantively different contributions to information and to formation of opinion. Competition from public broadcast programmes cannot then be claimed to have no importance for regional and local formation of opinion. If para.13(2), first and second sentences, LMedienG prevents this competition and reserves regional and local broadcasting to private suppliers, to that extent it curtails broadcasting freedom.
b) Such curtailment is not covered by the legislature's task following from Article 5(1), second sentence, GG of organizing broadcasting freedom (I. above). The organization is to aim solely at guaranteeing broadcasting freedom (BVerfGE 73, 118 ; cf. also BVerfGE 57, 295 ; the task thus given the legislator does not liberate him from being bound by Article 5(1), second sentence, GG (cf. Article 1(3) GG). The legislature's organizational freedom, to which the Land government appeals, encounters in this binding both its limitations and its empowerment to suspend or amend regulations it has itself created, as has been stated in several opinions. General considerations of this nature cannot, accordingly, replace specific reasons which show that statutory measures that affect broadcasting freedom serve the better or at least equivalent guaranteeing of that freedom, and are therefore constitutionally admissible as organizational arrangements.
The decisive reason for the prohibition on public programming in regional and local broadcasting does not meet this precondition. It consists, according to the explanatory statement on the government draft of the Baden-Württemberg Land Media Act, solely in protecting private suppliers against the competition of the Land broadcasting corporations; a danger allegedly exists that these latter will hinder the still existing market chances of later private broadcast producers; regional and local newspapers would allegedly incur the danger of partly losing the advertising income essential to their existence to regional and local broadcasting, without the possibility of making up this loss again in part through their own production of such broadcasting (LTDrucks 9/955, p.53 f.). Accordingly, the public broadcasting corporations should for the moment not be any more active than to date, so that private services can be set up without immediately being exposed to competition from large corporations with a strong range on offer (loc.cit. p.66).
But these economic grounds do not justify any prohibition on contributions to regional and local opinion formation by broadcasting. Market opportunities may be a question of economic freedom, but not of freedom of opinion. As far as this is concerned, there is no increase in their own freedom of opinion even for those favoured if other expressions of opinion are prohibited. Even apart from that, it cannot be seen to what extent the prohibition of the endeavour could help to give expression to the multiplicity of existing opinion in the greatest possible breadth and completeness. Those favoured are instead even protected against competitors where these have better and more varied programmes to offer than they do. This sort of prevention of free journalistic competition and intellectual debate is not compatible with the basic idea of what is guaranteed by Article 5(1) GG. Either the private producers join the journalistic competition by endeavouring themselves to produce varied programmes, interesting to listeners or viewers; in that case they are performing their supplementing and enriching function in the dual broadcasting system, and there is no need for any prohibition of public programmes. Or else the private producers are incapable of making any offer able to stand up against a competing public programme; here too, any statutory prohibition of such competing programmes cannot help the freedom of formation of information and particularly broadcasting freedom. If the legislator nevertheless enacts such a prohibition, this at any rate does not constitute an admissible organization of broadcasting freedom.
Moreover, it seems rather inconsistent to remove the existing "monopoly" of public corporations while at the same stroke setting up a "monopoly" for private producers of particular programmes. The removal is in line with the idea of a reorganization of broadcasting, to contribute to a broader range of programmes and thus of information through an opening to private producers; the establishment of the new "monopoly" is in clear contradiction with this idea.
This assessment cannot be countered by the superiority of the public corporations that allegedly makes competition by private suppliers practically hopeless. The argument brought forward in this connection, of the organizational, personal and financial lead of public corporations, has no decisive importance, at any rate for regional and local broadcasting. Its area of operation is considerably narrower than that of the producer of complete programmes at Land or Federal level. And the corporations have to date been able to accumulate only limited experience in this field, so that to this extent there is no noteworthy advantage. Skilled staff can equally well be hired by private producers (cf. BVerfGE 73, 118 ). Finally, the quality of regional and local programmes does not necessarily depend on the level of the producers' financial and economic power, especially since the costs of these programmes are comparatively small. Certainly, in order to stand up to programming competition, a private supplier must be economically viable. It may to that extent be justified for the legislature to seek to guarantee this precondition (cf. III. below). Within the framework of organizational empowerment, however, the legislature may nevertheless not opt for the path of restricting journalistic competition.
c) Para.13(2), first and second sentences, LMedienG does not establish a limit to broadcasting freedom admissible under Article 5(2) GG. From this viewpoint too, therefore, the provision cannot subsist.
aa) It seems already questionable whether it is to be regarded as a "general law" within the meaning of Article 5(2) GG; for the prohibition is directed exclusively and deliberately against the Land broadcasting corporations, so that it lacks personal generality (cf. BVerfGE 21, 271 ). At any rate, the provision does not conform to the precept that restrictions on the fundamental rights guaranteed by Article 5(1) GG must always be proportionate.
The limits to the fundamental rights of Article 5(1) GG must in turn be seen in the light of the freedoms guaranteed; the general laws are to be interpreted on the basis of recognition of the importance of the fundamental rights of Article 5(1) GG in a free democratic State, and thus themselves in turn limited in their effect of restricting these fundamental rights (BVerfGE 7, 198 [208 f.]; consistent case law). Accordingly, a constitutional ranking of broadcasting freedom and the object of legal protection under para.13(2), first and second sentences, LMedienG is required: the restriction contained in the prohibition on producing regional and local broadcasting must be appropriate and requisite in order to bring about the protection that the provision is intended to guarantee; what is attained by it must be in suitable proportion to the losses that limitation of one of the freedoms under Article 5(1) GG entails (cf. BVerfGE 71, 206 ).
As set forth above, the object of para. 13(2), first and second sentences, LMedienG is to protect the private producers against the competition of the Land broadcasting corporations. This protection is to improve private producers' initial chances. The means the legislature has chosen for this seems suitable for securing the object aimed at. Yet a milder means less restrictive of broadcasting freedom would have sufficed. At least for the area of regional and local broadcasting, no significant lead for Land broadcasting corporations can be presumed (b above). It would therefore still have been in accordance with the principle of requisiteness for the legislature to have confined itself to the ban on advertising in para.13(2), fourth sentence, LMedienG (see III. below). By contrast, entirely excluding public broadcasting from producing regional and local broadcasting is no longer compatible with this principle. Apart from that, the legislature's measure is not proportionate in the narrower sense. Protecting private suppliers against competition and the concomitant improvement in their initial chances lead to inappropriate losses: by the extent of their scope, they entail prevention of journalistic competition and intellectual debate. But precisely this is the point in the regional and local sphere, in which it is often hardly possible to speak of a plurality of opinion in the media. The ban in para.13(2), first and second sentences, LMedienG thus does not lead only to a limitation on broadcasting freedom; beyond that, it runs counter to freedom of opinion as a whole, which is constitutive for the free democratic constitutional order as such (BVerfGE 35, 202 [221 f.] - Lebach). Protection of private broadcasting producers against the competition from Land broadcasting corporations can be given no priority over protection of these legal goods, even if the legislator is endeavouring thereby to guarantee the realization of an in principle constitutional reorganization of broadcasting. Para.13(2), first and second sentences, LMedienG therefore do not contain an admissible restriction on broadcasting freedom.
bb) This evaluation cannot be changed at all by para.88(2) (4) LMedienG, whereby the Land government will within four years of entry into force of the law present the Landtag with a report based on a report by the Land Corporation, on experience in applying the law, and in particular on "whether . . . it is necessary with an eye to the balanced provision of broadcast programmes to the population to permit the Land broadcasting corporations to produce regional and local programmes".
Against the view advocated in the opinions of the Land government and the Landtag of Baden-Württemberg, the Federal Minister for the Interior and the Association of German Magazine Publishers, this provision cannot be used to establish the constitutionality of para.13(2), first and second sentences, LMedienG. For the Act does not have the nature of a temporally and spatially limited experimental trial arrangement in the area of broadcasting, in which according to Federal Constitutional Court case law the legislature has considerably greater freedom of construction, since such experiments serve the object of gaining experience (on this see BVerfGE 57, 295 , referring to BVerfGE 54, 173 , with further references): para.88(2) LMedienG lays down no temporal restriction on the period for which the Act shall apply. Whether the experimental nature of para.13(2), first and second sentences, LMedienG could be established also from the fact that the legislator is to review the provision within four years of entry into force of the Act and if necessary adapt it need not be gone into, since the very content of the provision concerned means that the prohibition cannot be a genuine experiment. This would presume that the provision regulated situations capable of repetition, and thus that if the experiment failed a different arrangement for the situation could be found. But this is out of the question for the "initial phase": it is not a process capable of repetition, but something once and for all. Should the legislator later reach the view that excluding the Land broadcasting corporations had not hindered the existing market possibilities of private broadcasting producers, the initial situation could not be restored and an arrangement now found that would meet this situation in some other way.
3. Para.13(2), first sentence, LMedienG is accordingly incompatible with Article 5(1), second sentence, GG, insofar as it excludes the production and dissemination of broadcast programmes of the Land broadcasting corporations that are not produced and disseminated for the whole transmitting area of the corporations in the Land. Para.13(2), second sentence, LMedienG is incompatible with Article 5(1), second sentence, GG and is null and void insofar as it prohibits the production and dissemination of other broadcast programmes that did not already exist at 31 December 1984. To that extent, both provisions infringe the complainants' basic rights under Article 5(1), second sentence, GG.
a) The obligation on the Süddeutscher Rundfunk arising from para.13(2), second sentence, LMedienG to stop its transmissions for Radio Stuttgart on Mondays to Fridays from 5.30 a.m. to 8 a.m., suspended by the Federal Constitutional Court by temporary order of 3 January 1986 pending decision of the constitutional complaint (BVerfGE 71, 350) thus falls down. A ban on an already existing public broadcast programme intended to bring about a shift in favour of private suppliers could stand up only where it contained an admissible organization or restriction of broadcasting freedom meeting the requirements of Article 5(2) GG. However, like the ban for the future on regional and local broadcast programmes of Land broadcasting corporations discussed above, the ban on the Radio Stuttgart morning programme serves solely to protect competitors. No other evaluation than for the programmes can therefore apply to it.
b) Since the production of regional and local programmes by the Land broadcasting corporations is not basic provision and thus a precondition for the admissibility of private programmes of this nature (1 above), removal of the bar in para.13(2), first and second sentences, LMedienG does not have the consequence of now giving public regional and local programmes primacy over private ones. On the other hand, no primacy should be allotted to private programmes either; the aim of guaranteeing or improving their producers' initial chances must be left out of account. As long as adequate transmission capacities are available, the Land broadcasting corporations and the private suppliers must instead be enabled to operate on an equal footing. This criterion is met even where for one regional or local transmission area there is one programme of the Land broadcasting corporations alongside several private programmes; a numerical equality of public and private programmes is not required.
Where transmission capacities are not available for all those interested, public broadcasting corporations and private suppliers must in principle be enabled to produce on the same terms. Insofar as with terrestrial transmission it is technically possible for the Land broadcasting corporations to disseminate their regional and local programmes without curtailment of the basic provision incumbent on them by way of temporarily switching out the transmitters available for the programmes transmitted throughout the Land, thereby avoiding preemption of a special frequency, they will have to use this possibility in order not to limit private producers' possibilities of disseminating their programmes any more than necessary.
To the extent that the constitutional complaints are directed against the ban on advertising in regional and local programmes of the public broadcasting corporations they are not justified. Para.13(2), fourth sentence, LMedienG, which enunciates this prohibition, is compatible with the Basic Law. Removal of the restriction of regional and local programmes of Land broadcasting corporations to programmes that already existed on 31 December 1984(II. above) extends the scope of application of this provision: by its meaning and purpose, the advertising ban now also extends to the other regional and local programmes of the complainants.
1. Whether commercial advertising in broadcasting is protected by broadcasting freedom to the same extent as is the advertising part of press products by press freedom (cf. BVerfGE 21, 271 [278 ff.]; 64, 108 ) need not be decided in the present proceedings. For a constitutional appraisal of para.13(2), fourth sentence, LMedienG, all that enters in is whether and to what extent the financing of regional and local programmes of Land broadcasting corporations by advertising is covered by the protection of Article 5(1), second sentence, GG.
The financial guaranteeing of these programmes is a component part of their protection by broadcasting freedom. This obliges the legislature to make adequate financing of the protected programmes possible; otherwise, the legislature could evade constitutional law against a direct ban on programmes by seeking to achieve the same result by withdrawing or limiting financing possibilities. The protection of the fundamental right does not by contrast in principle extend to individual forms of financing. All that counts is that the financing of the activity of the public broadcasting corporations on the whole be adequately assured and that the corporations in this way be enabled to finance those programmes whose production not only corresponds to the specific functions but is also necessary to the performance of these functions. Even if the individual forms of financing involve differing advantages and drawbacks, which might suggest giving particular forms preference, the legislature is not prevented from restricting or excluding individual forms of financing, including that of advertising. Where the programmes mentioned could no longer be financed without the withdrawn or lost revenue, the legislature must guarantee this financing in some other fashion. Should he fail to do so, then a restriction or ban on advertising also interferes with broadcasting freedom. In no case may financing be restricted in order to exercise influence on the nature of programming, still less on the content of individual programmes, thereby evading precepts or prohibitions of broadcasting freedom.
2. In the provisions of para.13(2), fourth sentence, LMedienG, the legislator has not taken any care to balance the loss of advertising income in regional and local programmes to Land broadcasting corporations. This fact is not yet constitutionally objectionable. At any rate, the advertising ban alone by itself meets the requirements for a limitation of broadcasting freedom by "general laws" (Article 5(2) GG).
Certainly, the addressees of this provision too are the Land broadcasting corporations alone (see II 2 c above). But the requisite generality cannot be denied it, because the prohibition it contains does not seek indirectly to limit or even eliminate public regional or local programmes and thus harms neither the expression or the dissemination of particular opinions nor the process of free opinion-formation as such; it serves to protect other objects of legal protection without regard to particular opinions (cf. BVerfGE 71, 206 ), and is in accordance with the precept of proportionality. The object of the provision is, as stressed in several opinions, the guaranteeing of the economic bases of the daily press and of private broadcasting. In both cases the starting-point must be that to maintain their existence they are dependent on income from commercial advertising. Protection against competition from the public broadcasting corporations seems appropriate and requisite in order to secure this goal. It is also in appropriate proportion with the losses that the restriction entails for the Land broadcasting corporations. For the existence of the daily press and of private broadcasting producers, guaranteeing their advertising income is of considerable importance, at least for a transitional period. The disadvantage for the public broadcasting corporations arises in a sector that does not constitute the main source of their revenue and therefore, taken all round, does not have the same weight in the balance, especially since the figures mentioned by complainant 1 in its constitutional complaint seem if its total turnover is considered to involve rather a slight effect; the disadvantage accordingly seems acceptable. By contrast with the ban on regional and local public programmes, the ban on advertising in para.13(2), fourth sentence, LMedienG does not eliminate journalistic competition between public and private broadcasting; it ought indeed to be appropriate for furthering this competition, since it makes it less likely for those involved in it to have to drop out for economic reasons. Para.13(20, fourth sentence, LMedienG is accordingly compatible with Article 5(1), second sentence, GG. Should it however prove in the long term that the complainant's regional and local programmes could not be financed without additional revenue, the legislature would as already explained have to ensure coverage of costs in some other way.
The constitutional complaints are further unjustified to the extent that they are directed against para.13(3) LMedienG, whereby broadcast programmes reserved to subscribers or payers of one-time fees may be produced by the Land broadcasting corporations only where this is specifically permitted by statute or State Charter.
1. This provision ties only the mode of financing Land broadcasting corporation programmes mentioned in it to specific permission by statute or State Charter; by contrast with the view of complainant 2, it contains no prohibition on producing sectional programmes.
This interpretation follows already from the tenor of the provision. It is supported by para.29(2) LMedienG, which provides for private broadcasters, likewise without restriction to programmes of particular content, the possibility of financing by subscriptions and one-time payments. That the point is primarily if not exclusively this form of financing emerges also from the explanatory statement to the government draft (LTDrucks. 9/955, p.81 f.). According to this, para.13(3) LMedienG presumes that traditional broadcasting is financed primarily from general broadcasting fees and to a lesser extent from commercial advertising. Any other financing would mean a fundamental structural change that could not be regarded as admissible without amendment to the broadcasting Acts and broadcasting charters. Such a structural change would however be bound up with the introduction of programmes financed by subscriptions or one-time payments. It may be that in the course of the further development of broadcasting a partial shift from mass programmes financed by fees and advertising to sectional programmes with separate financing might be necessary. This is however allegedly not yet the case for the moment and could therefore be left for later statutory regulation (cf. also Bullinger/Goedel, loc.cit., Rdnr. 12 on para. 13 LMedienG).
Any other interpretation would be incompatible with the guarantee of broadcasting freedom: in order to permit and protect free formation of opinion, the legislature is in principle debarred, as shown above (II 2 a), by Article 5(1) GG from prohibiting the production of broadcast programmes or taking other measures that curtail the possibility of making contributions to the formation of opinion that are disseminated by broadcasting. The legislature has instead in principle to allow the production of broadcast programmes on equal terms. This applies not only to regional and local programmes but also to sectional programmes of public broadcasting corporations. While these programmes cannot be counted as part of the essential basic provision since they are directed at a limited circle of recipients and are limited in topic so that they cannot in themselves allow comprehensive information and opinion-formation, for them journalistic competition (in the narrower sense) may also on that ground be less significant than for regional and local "full programmes". It is all the more important for sectional programmes of public corporations to be allowed to contain contributions that cannot be expected from private suppliers, such as the programmes in the cultural and educational sphere mentioned by the complainants. Consequently, the corporations can not only extend the breadth of the total programme range but also bring into it an essential element for cultural life in the Federal Republic, and exercise the classic mandate of broadcasting in this sphere (cf. BVerfGE 73, 118 ). Any prohibition of such programmes would run counter to the guarantee of broadcasting freedom. Accordingly, para. 13(3) LMedienG, as being a ban on public broadcasting corporations producing sectional programmes subject to later permission by statute or State charter, is alleged to contain an interference with this fundamental right.
If, thus, the interpretation of the provision just set forth did not follow from the ordinary legal provision, it would at any rate be required by the principle of constitutionally compatible interpretation of statutes. Para. 13(3) LMedienG thus does not contain any "sectionalization ban". It does not prevent public broadcasting corporations from producing and disseminating sectional programmes even if these can be received by anyone; though this, as with regional and local programmes, can apply in each case only to one programme in the same segment in the transmission area. The object of the provision is solely the form of broadcast financing, by subscription or one-time payment, which is allowed for private producers, but is for Land broadcasting corporations bound up with special permission. The question of the constitutionality of the provision can therefore be raised only in connection with the extent to which it is compatible with the guarantee of broadcasting freedom.
2. As a provisional (cf. para. 88(2) (5) LMedienG) prohibition on producing programmes financed by subscribers or one-time payers, para. 13(3) LMedienG does not infringe Article 5(1), second sentence, GG. As shown above, the exclusion or restriction of a particular mode of financing leads to a restriction on broadcasting freedom only where financing in some other way is not guaranteed. All that is constitutionally commanded is the general ensuring of functional financing of programmes in public broadcasting (III 1 above); the decision as to the ways this is to take place is a matter for the legislature.
In the case of para.13(3) LMedienG it cannot be seen that the reservation about special permission for financing by subscription or one-time payments and the associated provisional exclusion of this mode of financing makes it impossible for the complainants to produce sectional programmes. This has not been asserted by the complainants themselves. They turn primarily against their exclusion from the production of these programmes, which has in their view been ordered by para. 13(3) LMedienG, which they fear will cut them off from important development possibilities; but this cannot be taken from the proper interpretation of the provision. If complainant 2 sees the provisional prohibition of financing through subscription or onetime payment as endangering its existence, since it is not certain that in the long term exclusive financing by fees and advertising will be possible, this still cannot establish a need for introducing this mode of financing specifically.
Para.13(3) LMedienG accordingly does not, in the (constitutionally compatible) interpretation to be taken as a basis here, harm broadcasting freedom. The provision cannot be objected to. Should it prove in the future that sectional programmes of the complainants cannot be financed in the framework described from resources available, then either the possibility of financing in some other way while maintaining the present prohibition on subscription or one-time payment financing would have to be guaranteed, or this form of financing be allowed for public broadcasters. It would thus be constitutionally required for the special permission reserved in para. 13(3) LMedienG to be issued.
The constitutional complaints are also unjustified insofar as they are directed against para.13(4) LMedienG. According to this provision, private broadcasting producers can cooperate with public broadcasting corporations by jointly creating individual sound and motion picture transmissions, and by public broadcasting corporations making available to them, or taking from them transmissions or programme sections.
1. Here too the complainants base their objections on incorrect presuppositions. With the objection that the provision impugned makes cooperation with private suppliers dependent on their initiative, complainant 1 fails to see the importance of the version of the provision as amended from the government draft. If it is now directed at private producers rather than, as originally planned, at the Land broadcasting corporations (on this see Bullinger/Goedel, loc.cit., Rdnr. 13 on para.13), then this does not, as the Landtag and Land government also point out, exclude an initiative for cooperation from the Land broadcasting corporations. Nor can one follow the view of complainant 2 that the provision prohibits it from involvement in border-crossing community programmes. It can, without restriction, collaborate with domestic and foreign public corporations; moreover, the reformulation mentioned has the consequence that the public corporations retain the possibility of cooperation, not corresponding with para. 13(4) LMedienG, with private broadcast producers admissible according to the new media Acts of other Federal Laender or abroad (Bullinger/Gödel, lot.cit.). The provision opposes mere cooperation going beyond the extent it admits with private producers permitted under the Baden-Württemberg Land Media Act.
2. In this sense para. 13(4) LMedienG does not contravene Article 5(1), second sentence, GG.
The provision, as emerges from the explanatory statement to the government draft, serves to separate the areas of responsibility clearly. Comprehensive joint undertakings of public and private producers are to be excluded; by contrast, limited cooperation is not prevented (LTDrucks. 9/955, p.82). The provision thus comes into conflict neither with the freedom of producers from government guaranteed by broadcasting freedom, nor with the ban on influence on programmes, nor with the precept of ensuring comprehensive information and presentation of the variety of opinions. At most, the programming of the government corporations could be affected by the fact that a full joint programme with a private producer licensed in the territory to which the Land Media Act applies is denied them. Even were this to constitute a restriction of broadcasting freedom, it would be small in scope. It would be justified by, Article 5(2) GG, whereby para.13(4) LMedienG would contain an admissible limit to broadcasting freedom: the provision is appropriate and necessary for securing the objective aimed at. It is also proportionate in the narrower sense. If public corporations are prevented (only) from comprehensive cooperation with a narrowly limited range of private producers, then this seems acceptable in the interest of avoiding a mixed system of private and public broadcasting in the Land of Baden-Württemberg.
Finally, insofar as complainant 2 regards the obligation to make free videotext capacities available to other producers (para. 44(3) LMedienG), the reservation of special permission by statute or State charter for sound and motion picture services on call (para. 45(2) LMedienG) and the exclusion of Land broadcasting corporations from producing sound and motion picture services on access, in its view ordered by para.46(2) taken together with para. 23(2)(4) LMedienG, as unconstitutional, its constitutional complaint is only partly justified.
1. The criterion of constitutional review is here too Article 5(1), second sentence, GG. The view that infringements of broadcasting freedom are not present simply because the object of the provisions mentioned is communication services similar to broadcasting that do not fall under the traditional concept of broadcasting cannot be followed.
The term "broadcasting" used in Article 5(1), second sentence, GG cannot be covered by a definition valid once and for all. The content and scope of constitutional terms and definitions depend (also) on the area they govern; their meaning may change with changes in this area (cf. BVerfGE 73, 118 ). This also applies to the term broadcasting. If broadcasting freedom is in a changing future to retain its normative effect, then it cannot be sufficient to be bound only by an older technology, to confine the protection of the fundamental right to those factual situations to which this technology relates and in this way make the guarantee obsolete in areas in which it could very well carry out its function in regard to new technical possibilities too. To guarantee free individual and public formation of opinion, the protective effects of Article 5(1), second sentence, GG described above (I) are instead required, for "communications services similar to broadcasting" too. Their inclusion in the area of protection of the guarantee thus seems proper, especially as the services under consideration here do not differ essentially from traditional broadcasting. This cannot be opposed by the fact that the Baden-Württemberg Land Media Act does not term these services "broadcasting".
Para.1(2)(1) LMedienG defines this term essentially in line with the concept of broadcasting predominantly recognized in other Länder too, albeit with a certain narrowing, as follows:
Production and dissemination of presentations of all types in word, sound and picture using electromagnetic vibrations without a linking line or along or using a line is
1. Broadcasting if it is intended for simultaneous reception by the public in a planned, temporally arranged sequence.
According to the definition of para. 1(2)(2) LMedienG, communication similar to broadcasting differs from this only through the two negative characteristics that it constitutes neither broadcasting nor individual communication. If one instead considers the positive characteristics, it is accomplished through the same transmission technique as broadcasting. The distinction that broadcasting is "intended for the public" while transmissions on call are conveyed to "any person whatever" (para. 1(3)(1)) and transmissions on access "are at all times accessible to "everyone" (Para. 1(3)(2)) can scarcely be regarded as of importance. The same applies to the further distinction that "broadcasting" is according to the legal definition in the Land Media Act intended "for simultaneous reception" but with communications similar to broadcasting the time of reception can be decided by the recipient.
No distinction between the transmissions termed "broadcasting" and those termed "communications similar to broadcasting" subsists on the points which can alone be decisive from the viewpoint of Article 5(1) GG: the content of the transmissions and those involved in the communication process. In both cases, transmissions of the same content are disseminated; in both the producers and an indefinite multitude of watchers or listeners are involved; in both the recipient makes selective decisions by switching on and off.
Whether accordingly the exclusion of communications similar to broadcasting from the concept of broadcasting in para. 1(2) LMedienG is justified need not be gone into. At any rate it cannot follow from the purely descriptive distinction in the Act that the production of videotexts and of sound and motion picture services on call and on access does not fall constitutionally under the guarantee of broadcasting freedom. In consequence, in the present proceedings contravention of a fundamental right cannot be ruled out simply on the ground that Article 5(1), second sentence, GG is not relevant.
2. The obligation established by para. 44(3) LMedienG of making videotext capacities (empty lines) available to other producers where the Land broadcasting corporations do not use them themselves for information on their television and video broadcast programmes and for information accompanying and supplementing programmes (para. 44(1) LMedienG) and when they are also not needed for trouble-free transmission of the television signal (see A III 4 b above) is compatible with Article 5(1), second sentence, GG. While the provision takes away from the public corporations a possibility that hitherto existed for them though it was not fully used, it is a purely textual service that is involved. This has nothing to do whether directly or indirectly with the indispensable basic provision by public broadcasting corporations. Even apart from that, the taking up of unused videotaxt capacities by the public corporations does not seem proper, since it can hardly be taken that the information disseminated in this way would have anything different for its content than what the corporations disseminate, or can disseminate, in their broadcast programmes including their videotext offerings to the existing extent. No limitation of broadcasting freedom can therefore be seen. To be sure, the possibility of videotext transmissions by private suppliers on the television channel of a Land broadcasting corporation does not fit automatically into the system of the Act. But this does not constitute interference with a fundamental right, as complainant 2 assumes.
3. By contrast para. 45(2) LMedienG does contain a restriction on broadcasting freedom not covered by Article 5(2) GG, and therefore contravenes Article 5(1), second sentence, GG.
a) The exclusion, even if possibly only temporarily, of the Land broadcasting corporations from producing the services mentioned is in principle not to be assessed differently from their exclusion from producing regional and local broadcast programmes (cf. II above).
With these services too the need for basic provision is not initially present. But such a need may arise if future development were to lead in the direction the Land Media Act contemplates, that is, if communication services similar to broadcasting come to replace traditional broadcasting to any considerable extent. This is clearly recognized and expressed in the explanatory statement to the government draft of the Act, according to which public broadcasting is to continue to perform the task of comprehensive dissemination of opinions and cultivation of culture within the framework of the statutory mandate, and must handle a core set of broadcasting tasks: guaranteeing the carrying out of these tasks is seen as making it necessary also to enable them to use new technical possibilities for disseminating broadcast programmes (LTDrucks. 9/995, p.65).
The need to make it possible for public broadcasting to adapt to changed circumstances exists even if the task of basic provision were not to shift into the area of new services similar to broadcasting. On this presupposition, involvement of the public corporations in communications services similar to broadcasting can only contribute to the breadth and variety of the range offered in those services and allow journalistic competition to come about; this also meets the requirements of broadcasting freedom, and does so the more public broadcasting handles the classical mandate in this area mentioned (II 2 a above). This is taken account of when the explanatory statement to the government draft states that the endeavour is in particular to open up the new on-call services for large numbers of providers, in accordance with the rules of free competition. Providers are however to include not only press undertakings and other private providers, but also the public broadcasting corporations, so far as necessary for them to be able to continue to perform their tasks in the general structural shift in electronic media (LTDrucks. 9/995, p.65 f.).
b) When in para. 45(2) the Land Media Act nevertheless excludes the Land corporations from producing sound and motion picture services on call pending special permission by statute or State charter, this does not constitute an organizing arrangement (cf. II 2 b) above), but a restriction of broadcasting freedom. This is not in accord with the principle of proportionality to be observed in the context of Article 5(2) GG. The endeavour to give private providers an initial chance here (LTDrucks. 9/995, p.66) cannot suffice here either for a restriction on the fundamental right (cf. II 2 c above). Since the temporary prohibition of Article 45(2) LMedienG cannot be regarded as an experiment any more than can para. 13(2), first and second sentences, LMedienG, the reservation of later review (para.88(2)(5) LMedienG) can change nothing here. Para. 45(2) LMedienG is incompatible with Article 5(1), second sentence, GG, and is null and void.
4. Things are different with para. 46 LMedienG. This provision regulates the production of sound and motion picture services on access only for private providers; it contains no provisions for public broadcasting, is not applicable to them and can in consequence not, to that extent, contravene Article 5(1), second sentence, GG.
Where complainant 2 interprets para. 46(2) taken together with para. 23(2)(4) LMedienG to the effect that the Land Media Act has with these provisions completely and definitively ruled out the production of sound and motion picture services on access by the Land broadcasting corporations, it cannot be followed. Such an interpretation may admittedly not be entirely out of the question; it would however have as a consequence the inconstitutionality of the exclusion (cf. 3 above). Instead, para. 46 LMedienG does offer the possibility of constitutionally compatible interpretation, and moreover the materials associated with the Act and the system of the Act tend to favour this interpretation more than that of complainant 2. Accordingly, this interpretation is the proper one.
Though the explanatory statement to the government draft has explicitly stressed the particular closeness of the access services regulated under para. 46 LMedienG to traditional broadcasting (LTDrucks 9/955, p.103) it does not say a word about exclusion of public broadcasting corporations from these services. It cannot be assumed that the legislator, who has stressed that the new technical possibilities ought to be open to public broadcasting too (see 3 a above), has actually determined the opposite and expressed this not openly, but indirectly and in concealed fashion through a reference.
If, moreover, para. 46(1) LMedienG links production of a sound and motion picture service on access to licensing by the Land Corporation for Communications (para. 72(2)(13(a) LMedienG), then this clause itself speaks against applicability of the provision to public broadcasting. For while in all other cases in which the Act wishes to exclude public corporations from producing programmes or otherwise restrict them it says this directly (cf. e.g. para. 13(2), para. 45(2) LMedienG), it would in para. 46 LMedienG have to have chosen a different way: the establishment of a licensing obligation, although otherwise it does not have any licensing of public broadcasting corporations by the Land Corporation. Insofar as the licensing obligation of para. 46(1) LMedienG is also to apply to the public corporations, this would be a unique arrangement; no reason making such a departure necessary or at least understandable could be seen.
The inapplicability of the arrangement to public broadcasting corporations is shown still more clearly by para. 46(2) LMedienG. It states that, of the provisions on private broadcasting, the listed provisions apply. Were para. 46 LMedienG to be applicable to public broadcasting corporations too, this would mean that these were subject to the law of private broadcasting, which serves other functions and purposes than the provisions on public broadcasting. The majority of provisions to which para. 46(2) LMedienG refers, for instance on the types of licence (para. 17), the guarantee of pluralism (para. 18) or subjection to legal control by the Land Corporation (paras. 31 f.), do not, however, apply to public broadcasting. Accordingly, no applicability of the provision to public broadcasting corporations can be assumed.
Certainly, para. 46(2) also refers to para. 23(2)(4) LMedienG. This, however, means merely that public broadcasting corporations may not be given a permit to produce private broadcasts (cf. the heading to the second sub-section, before para. 16 of the Act), and this has its very proper point. Neither here nor at any other point in the Act is there any mention of licensing for the production of public broadcasting. The fact that the provisions mentioned are in the context of para. 46 LMedienG to apply only "analogously" changes nothing here. This formulation has its reason in the fact that the Act does not regard the sound and motion picture services on access as "broadcasting", so that the provisions on broadcasting to which reference is made can here apply only analogously.
Since accordingly the Land Media Act does not forbid public broadcasting corporations from producing sound and motion picture services on access, para. 46 LMedienG cannot to that extent be unconstitutional. Insofar as the constitutional complaint of complainant 2 is directed against this provision, it is unjustified.
Judges: Dr. Herzog, Dr. Simon, Dr. Hesse, Dr. Katzenstein, Dr. Niemeyer, Dr. Heußner, Dr. Henschel, Dr. Seidl.
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