Dr. Michael Winter, LL.M.eur.,
Lecturer in Law at Regensburg University, Germany
German Media Law (An overview)
Budapest, September 2015
Agenda
A. Definition of Media Law
B. Rights of the media and regulation of the media
C. Limits to the media
D. Remedies against the media
A. Definition of media law
 No general definition
 Interdisciplinary legal field
 Public Law, Civil Law, Criminal Law
 High relevance of jurisprudence (national/European)
 Jurisprudence, strictly speaking, not a legal source
A. Definition of media law
Areas of media law (cf. agenda):
 1. Rights and regulation of the media
 2. Limits to the media
 3. Remedies against the media
Note: Textbooks often focus on only one of these areas
A. Definition of media law
 What are media?
 Named media in the German Constitution (Art. 5 GG/
Basic Law for the Federal Republic of Germany):
 Press
 Broadcasting
 Film (not covered in this lecture)
A. Definition of media law
Article 5 GG (Basic Law)
[Freedom of expression, arts and sciences]
(1) Every person shall have the right freely to express and
disseminate his opinions in speech, writing and pictures,
and to inform himself without hindrance from generally
accessible sources. Freedom of the press and freedom of
reporting by means of broadcasts and films shall be
guaranteed. There shall be no censorship.
German Basic Law in English: http://www.gesetze-iminternet.de/englisch_gg/
 Problem: Online Media (Telemedia)/Internet not
addressed in Art. 5 GG (Basic Law)
 Reason: Basic Law confirmed in 1949
 Solution: Covered by the freedom of expression or the
press freedom or the freedom of broadcasting
 Prevailing opinion: freedom of broadcasting
(Reason: use of electromagnetic oscillations)
Not Media Law, but Media Ethics:
The German Press Council (cf. www.presserat.de)
Self-regulatory body of the print media
Also deals with online content (telemedia)
Note: Media lawyers file for their clients claims and also
complaints to the Press Council
B. Rights of the media and media regulation
Article 5
(1) Every person shall have the right freely to express and disseminate his opinions in
speech, writing and pictures, and to inform himself without hindrance from generally
accessible sources. Freedom of the press and freedom of reporting by means of broadcasts
and films shall be guaranteed. There shall be no censorship.
This Article entails several basic rights (Grundrechte):
Freedom of expression
Freedom of information
Freedoms of the media: Press – Broadcasting - Film
B. Rights of the media and media regulation

Media freedoms include in principle also the freedom to establish media

Everybody is in principle allowed to establish media

Yet licensing of private broadcasting (television and radio) enterprises required
(state Media Authorities)

Freedom of broadcasting is not only a basic right, but also entails a mandate to
establish a system which ensures that the diversity of existing opinions is presented
in broadcasting as broadly and comprehensively as possible (cf.
Bundesverfassungsgericht, Judgement of 25 March 2014 - 1 BvF 1/11, 1 BvF 4/11)

Freedom of broadcasting is often named a “serving” freedom

It is for the legislature to create the set-up of this system, and the legislature has a
broad margin of appreciation for this

Everybody is in principle allowed to establish media:

Landmark case:

Judgment of the German Constitutional Court (Bundesverfassungsgericht)
of 12 March 2008
(2 BvF 4/03)

Absolute prohibition on political parties having an equity interest in
private broadcasting organisations contrary to the constitution

Hessian Private Broadcasting Act (Hessisches Privatrundfunkgesetz – HPRG)
which banned political parties from holding a direct or indirect equity
interest in private broadcasting organisations was found to be contrary to
the constitution.

Incompatible with Article 5.1, sentence 2, GG in conjunction with Article
21.1 GG

Article 21 GG [Political parties] (1) Political parties shall participate in
the formation of the political will of the people. They may be freely
established (…)
C) Limits to the Media
Prohibition of censorship
Note: Not a basic right, but a limitation to the State regarding media coverage
is the prohibition of censorship in Article 5 Basic Law
Principle of freedom from state intervention (Art. 5 GG in conjunction with
Art. 20 GG)
High democratic relevance of free media (media are supposed to control State
and Society)
Article 20 Basic Law (Constitutional principles)
(1) The Federal Republic of Germany is a democratic and social federal state.
(2) All state authority is derived from the people. It shall be exercised by the
people through elections and other votes and through specific legislative,
executive and judicial bodies.
C) Limits to the Media
Note:
No censorship is the use of the publisher’s/employer's
management powers (Direktionsrecht) in his/her
enterprise
C. Limits to the Media
Principle of freedom from state intervention into the media
Judgment of 25 March 2014 (1 BvF 1/11, 1 BvF 4/11)
(Applications for Judicial Review Filed Against the ZDF State Treaty)
Bundesverfassungsgericht:
The institutional set-up of the public broadcasting corporations (like ARD or
ZDF) is guided by the principle that the share of members who are part of
state authority or close to it is strictly limited
(https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/
2014/bvg14-026.html)
Further limits to the media
 Article 5
[Freedom of expression, arts and sciences]
(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and
pictures, and to inform himself without hindrance from generally accessible sources. Freedom of the
press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no
censorship.
(2) These rights shall find their limits in the provisions of
general laws, in provisions for the protection of
young persons, and in the right to personal honour.
D) Remedies against the media
Individuals bringing a claim against the media often rely on the
combination of Article 2.1 GG in conjunction with Article 1.1 GG:
Article 2 GG [Personal freedoms]
(1) Every person shall have the right to free development of his
personality insofar as he does not violate the rights of others or
offend against the constitutional order or the moral law.
Article 1 GG [Human dignity – Human rights – Legally binding force of
basic rights]
(1) Human dignity shall be inviolable. To respect and protect it shall be
the duty of all state authority.
D. Remedies against the media
The combination of Article 2.1 GG and Article 1.1 GG entails the
general right of personality.
The content of this right is not described in general and final terms
The content includes mainly the right of disposal of the depiction of
one’s own person, social recognition, as well as personal honor
A major guarantee is constituted by protection against statements
which are suited to impair the reputation of the person, in particular
the person’s public standing
(cf. Bundesverfassungsgericht, Order of the First Senate of 25 October
2005 – 1 BvR 1696/98)
D. Remedies against the media
 The civil law basis for the general right of personality is mainly
constituted by section 823.1 of the German Civil Code (“another
right”)
Section 823.1 BGB (Civil Code) - Liability in damages
(1) A person who, intentionally or negligently, unlawfully injures the
life, body, health, freedom, property or another right of another
person is liable to make compensation to the other party for the
damage arising from this.
D. Remedies against the media
 Libel and slander are governed by sections 185 up to 200 of the German
Criminal Code (StGB)
 These laws are also applied in civil law via § 823.2 of the German Civil
Code:
Section 823.1 and 2 (Civil Code) - Liability in damages
(1) A person who, intentionally or negligently, unlawfully injures the life,
body, health, freedom, property or another right of another person is
liable to make compensation to the other party for the damage arising
from this.
(2) The same duty is held by a person who commits a breach of a statute
that is intended to protect another person. (…)
D. Remedies against the media
Publication of images and photojournalism

Relevant is the German Copyright (Arts Domain) Act
(Gesetz betreffend das Urheberrecht an Werken der bildenden Künste und der
Photographie, KUG)

Sections 22, 23 Copyright (Arts Domain) Act:
Section 22(1) of the Copyright (Arts Domain) Act provides that images can only be
disseminated with the consent of the person concerned.
Section 23(1)(1) of the Act provides for exceptions to that rule, mainly where the images
portray an aspect of contemporary society (Bildnisse aus dem Bereich der
Zeitgeschichte)
This is true on condition that publication does not interfere with a legitimate interest
(berechtigtes Interesse) of the person concerned (cf. section 23(2))
D. Remedies against the media
Important:
Concept of contemporary history in § 23.3(1) of the
Art Copyright Act: Not limited to events of historical or
political importance; rather determined by the public’s
interest in being informed
(öffentliches Informationsinteresse)
D. Remedies against the media
Further Important note:

What is not guaranteed is that a figure of contemporary history (Person der
Zeitgeschichte) may be photographed at any time without restriction for the purposes of
medial use in all situations

Also in this regard, the above test applies (sec. 22, 23 KUG)

Landmark cases:
Ruling of the European Court of Human Rights, case of Hannover v. Germany (application
no. 59320/00) of 24 June 2004: Main Topic: Paparazzi-photos of Princess Caroline of
Hanover, formerly Caroline of Monaco, showing scenes from her daily life and published
in German magazines
Bundesverfassungsgericht, Order of the First Senate of 26 February 2008
(1 BvR 1602, 1606, 1626/07)
D. Remedies against the media
Civil Law Remedies in German Media Law
Five main remedies against unlawful media coverage:
 Right of reply
 Right to future forbearance of the coverage
 Retraction
 General damages
 Compensation for immaterial damage
. Remedies against the media

Right of reply (Gegendarstellung)

Claim based on the idea of “audiatur et altera pars” (“listen also to the other
party/person”)

Grants persons affected by media coverage the opportunity to publish his point of view

Important: Not dependent on the truth of the relevant publication!

Limited to factual statements

No right of reply to opinions

Very strict requirements (cf. for example Art.10 BayPrG/Bavarian Act on the Press)
D. Remedies against the media

Right to future forbearance of the coverage (Unterlassung)

Based on an analogous application of Section 1004.1 BGB:
Section 1004 (Civil Code) - Claim for removal and injunction
(1) If the ownership is interfered with by means other than removal or retention of possession, the
owner may require the disturber to remove the interference. If further interferences are to be
feared, the owner may seek a prohibitory injunction.
(2)The claim is excluded if the owner is obliged to tolerate the interference
Most important remedy in cases of violations of the general right of personality

Relevant statement must be untrue or vulgar abuse (Schmähkritik: opinion aimed to insult)

Further interferences have to be feared

Person affected by the coverage usually apply for an interim injunction

May be filed with any German court if the publication was nationwide one
D. Remedies against the media
Retraction (Widerruf):
 Also based on an analogous application of Section
1004.1 BGB (Civil Code)
 Only against wrong factual statements
 Forces media to admit that they were wrong!
D. Remedies against the media
General damages (Schadensersatz)
 Based on Section 823.1 and 2 (Civil Code)
 Section 823.1 and 2 (Civil Code)
Liability in damages
(1) A person who, intentionally or negligently, unlawfully injures the life,
body, health, freedom, property or another right of another person is liable
to make compensation to the other party for the damage arising from this.
(2) The same duty is held by a person who commits a breach of a statute
that is intended to protect another person. (…)
(cf. above, civil law basis for the general right of personality)
D. Remedies against the media
Compensation for immaterial damage (Geldentschädigung)
 Based again Section 823.1 and 2 BGB (Civil Code) in
combination with Section 253 BGB and Articles 2.1, 1.1 of the
Basic Law
 Concerns immaterial harm (by way of contrast Schadensersatz
concerns material loss)
 Strict requirements:
 severe violation of personality rights/privacy
 media have acted intentionally/negligently
 effects cannot be restored by other remedies
References/Literature
 Cremer, Hans-Joachim, Human Rights and the Protection of
Privacy in Tort Law, 2010 (see Chapter II)
 Glasser, Charles J. (ed.), International Libel and Privacy
Handbook: A Global Reference for Journalists, Publishers,
Webmasters and Lawyers, 3rd Edition, 2013 (Chapter
“Germany”, author: Jan Hegemann)
 Grzeszick, Bernd, The 'serving' freedom to broadcast:
Subjective versus objective dimensions of a fundamental
right, published article in: Pünder/Waldhoff (eds.), Debates
in German Public Law, 2014, Chapter I.5
 Mann, Roger, “German media law in the international
environment”, 2005 (http://www.dammmann.de/assets/german_media_law.pdf)
Thank you very much for
your attention
I am happy to answer your
questions