Media Regulation and Self-Regulation in Germany

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By Michelle Tribon
1126597_15510252-1024x768While in Bulgaria the debate around the self-regulation is heating, we would like to turn your attention to Germany and its well-functioning media system. In case you need an inspirational model, here are the basic institutions of freedom of speech in the biggest European economy:

Press Council

The German Press Council is a unification of four publishing and journalism unions (dju Deutsche Journalistinnen- und Journalisten-Union; BDZV Bundesverband Deutscher Zeitungsverleger; Verband Deutscher Zeitschriftenverleger e.V. (VDZ); Deutscher Journalisten Verband (DJV), which include nearly all people active in the printed press. It was founded in the 1950s with the aim to prevent a nation-wide press law. By a small part, the German Press Council is financed by state subsidies. Nevertheless, it serves also as ambassador of journalistic interests against the state and is not perceived as influenced by the government.
The council is composed of a sponsoring association and a plenum. The sponsoring association consists of two members each of the four founding organisations with the aim to foster the standing and reputation of the German press and press freedom in general, but dealing mostly with finances and organisation of the Press Council.
The plenum has the task to combat deficiencies in the German media landscape. It consists of seven members each of the four founding institutions (so 28 in total). All members works as volunteers in this position. The plenum works as the general assembly of the Press Council and is also the official mouthpiece of council and the institutional voice of German press in general. In addition to this exist three committees for complaints which consists of both journalists and publishers. Two of them deal with complaints in general, the third is specialised on editorial office data protection.
The core of the German Press Council is the German Press Codex, the heart of journalistic self-regulation in Germany as it is not a law, but an ethical code to which media can agree on a voluntary basis. Checking if media do stick to those self-imposed regulations is the main function of the Press Council and it is known to the wide public exclusively for this function. Every private person is able to issue a complaint to the council, if it is suspected that an article or image (in print or online media, not radio or television broadcasting media) violates the German Press Codex.

Public Complaints to the Press Council

When a complaint is issued, a first examination is carried out by a member of the committee of complaints. If the complaint is refused, the client conducting it will be informed. If it is not refused in the first reading, the affected media will be contacted and requested to make a statement on the case at hand. Both on the basis of the complaint and the statement, the committee of complaints will judge over the case.
Quarterly, the committee comes together to discuss the cases of complaints. If they find some media guilty of a violation of the Press Codex, the council has four measures to sanction (not legally punish) them:
1.    a public reprimand (including the duty to print/publish it)
2.    a non-public reprimand (without the duty to publish it, often with regard to the protection of the complaining party/victim)
3.    a disapproval (is directed to the editorial office, non-public but with the advice to publish it for fairness reasons)
4.    an advice (is directed to the editorial office, non-public)
This shows the sanctions from hardest to softest, the public reprimand is thus the most severe sanction German media can face from the Press Council. In case the media was able to resolve the problem on its own with the complaining party, the Press Council might step back from sanctioning them, even though the complaint was justified.
The Press Codex serves as the basis for the judgement about the complaints. It is defined as a supplement to the German Constitution, where the freedom of the press is defined in article 5, which allows people to publish their opinions without censorship, but within the borders of the prevailing laws. However, the morals and ethics of journalism in Germany are not further defined at this point in the Constitution. The Press Codex makes up for this by providing a framework on general tasks and aims of journalism and the Press Council, defining rules for ethical and fair journalism and allowing everyone to issue a complaint in case those rules are breached.

The German Press Codex

The codex was first written down in its current form in 1973. Earlier, it existed as “General Principles of Publishing” in several different wordings. It was a result of some single cases which were judged and was thus rarely universally applicable. The old principles were included into the new-founded codex. Since 1973, also the codex had to undergo some changes, for example when women’s rights groups fought for an inclusion of an article against discrimination which also includes women. Currently a group works on the renovation of the codex in the view of the proceeding digitalisation of print media, which has to be recognized by the codex and which requires the adaptation of some rules.
First, the codex defines the general rules which define ethical journalism. Among them are are first and foremost the duty to protect both truth and human dignity in reporting. Amendments to the protection of truth include, for example, that no media is allowed to have an exclusive access to information which is of public interest. It is also nоt allowed to publish press releases without labelling them as such. Also, in election times, all viewpoints need to be published equally, even though they do not show the opinion of the media at question.
The second article deals with preciseness. It is not allowed to quote people with something they did not say exactly. Also pictures or graphs must not be misleading. This applies especially to the publishing of opinion polls and their results. There are no strict rules defining how to publish polls, however it needs to be stated if they are representative or not. If something in publishing went wrong in any way, publishing something that was untrue, the media have the duty to correct themselves as soon as possible and in public.
Further articles of the codex define the restrictions of practical journalism. There exist several guidelines on how – or not – to do research. It is, for example, against the codex to conduct research without openly identifying as a journalist and thus making others know that all information given to this person might be published or at least serve as background for an article. Also, not all persons should be treated the same way. Humans without the full possession of their mental faculties, persons who are in special situations which might influence their behaviour and thinking, like a shock, and also children are not allowed to be used for research. Information gained under such unapproved circumstances must not be published or used in any other way for journalistic work.
Also other articles define the right to privacy which needs to be respected by the press. Mostly, coverage should not be clearly identifying people involved. Exceptions can be made when there is a need to identify the person or this is justified by an extraordinary public interest in such an information. Apart from this – especially when it comes to crime reporting – neither culprit nor victim should be identified in the media. This applies as well to their relatives and other close people involved. Not only names should not be given, also other details like the residency should not be given to the public without special permission
Regulations to deal with confidential data are also written down, even though this topic widely bases on the individual consideration of the journalists: In case they are handed secret information, it is their choice to publish them, but only if the right to information by the public is stronger than the reason for keeping the information a secret (e.g. in case of state secrets which can harm the people if published or secrets about prominent persons which would only harm the person and be a sensation, but not of any public interest in the strict sense). In addition, journalists are told to handle their sources with care, protect them and not to disclose them to the public.
One of the most important articles, especially nowadays when PR and journalism are becoming closer and closer, is article 7, which deals with the separation of advertisement and journalism. It states that it is against the public interest to let political, private or economic interests guide and influence journalistic articles. Thus, every influence – may it be pure advertisement, surreptitious advertising, commissioned articles or PR material – must be clearly and unequivocally labelled as such, so that the reader is not mislead and has the possibility to distinguish advertisement and journalism at first sight.
Further regulations regard the tone of reporting. Journalists must not harm people’s honour nor their religious or philosophical ideology on purpose. Journalism does not necessarily need to be emotionless – however, the press codex tells journalists not to portray stories, especially in concerning crime reporting, in a sensational way. Such topics must be treated with respect to victims and relatives and must be arranged with the police investigating the cases. Sensational depictions of suffer, violence and brutality clearly breach the ethical code. In this context, it is also important to respect the law that people are innocent until the moment of conviction. The press has no right to prejudge persons in public. Media should neither function as judge nor decide about possible punishments. Also, displaying people openly to the public, judging them and thus denouncing them using the media as social means for punishment is not allowed.
If any person feels that one of those rules is breached by print or online media, they can openly issue a complaint to the Press Council. Complaints which reached the council number up to 1.500 – 2.000 per year, mostly coming from private persons. The number of complaints against online media is rising. As a response, the  council yearly announces around 20 to 30 reprimands, most of the complaints which are judged as reasonable are responded to with advices and disapprovals, so to say the milder forms of the possible sanctions.

Criticism

The Press Council and the Codex were introduced as means of self-regulation to avoid the creation of a binding nation-wide press law. In general, the work of the Press Council is perceived as positive. It is widely accepted by both publishers and journalists and is known to the public, so that it can fulfil its societal function.
However, strong criticism does exist as well: Most striking is the fact that the Press Council only has the power to sanction the media – which is far from punishing them. So to say, many perceive sanctions like the public reprimand, which is the hardest sanction, as too soft. Consequences for the newspapers are not severe, if the only thing they have to do is telling their readers that they committed a fault. It is rather unlikely that through this they will lose a big number of readers, so the effect of the reprimands is very low. In consequence, it is suspected that media – mainly boulevard papers – happily accept the sanctions of the press council in case they could pull off a scoop which helps them to raise their sales.
The Press Codex works with the value of respect in every aspect: It needs to be respected freely – no one can be forced to do so. And if regulations are violated, the sanctions only can harm the respect and the image of the media – nothing more. Often, sales and finances are valued more than a good public image and respect. This is why the Press Codex and the Press Council are seen as positive measures to regulate journalism a bit – no paper wants to publish a reprimand every other week and it cannot be said that media ignore such reprimands, they even  – but especially when it comes to very critical cases which have the potential to be a sensation or to scoop other media out, the market seems to be more important than respecting the regulations of the Press Codex. The press council does thus seem more important and more harmful than it finally is. Whoever wants to violate the rules has the possibility to do it without facing severe consequences. Of course, when people see their personal rights harmed, they always have the possibility to bring this case to court. However, this is not a case of media regulation practices.
Even though most publishers agreed in the 1980s to sign a paper obliging them to publish reprimands, it happens from time to time that media refuse to print them as they do not agree with the judgement of the Press Council. In such cases the council has no means to force a medium to do it – as the public reprimand is already the strongest sanction possible to be taken out. Even when reprimands are published, it happens that the press does not step back from printing it together with an own statement explaining why the paper does not accept or agree with the decision of the press council. This lowers the impact of the sanctions enormously and gives the impression that in some cases they are not well respected.
It is criticised as well that – with its current working mechanism – the Press Council is unable to react spontaneously to complaints. Due to the fact that the committees of complaints only meet four times a year to discuss the complaints, sanctions are places when the public discussion is already over – the attention for this is thus very low. In addition to that, the Press Council is unable to participate actively in the public discussion about the media behaviour. It is not capable to issue a position and thus contribute as press institution with a strong position to the debate. It can only name the number of complaints sent to the committees of complaints, but is not allowed to take a stand before the complaint was discussed with the full committee. Consequently, the Press Council is losing credibility and reputation. It should be the institution being most active, guiding the public discussion and serve as a referee in the fight between media and public, but prefers to be rather passive. Expectations of the public, who know the Press Council as only official institution with the power to judge over such cases, are thus often dashed.
The council, however, usually refuses such criticism with the indication that its main function is rather preventive than a reactive one. Instead of taking part in the discussions, it works to prevent that such discussions come up in general. Nevertheless, the metaphor of the toothless tiger, as which the Press Council is usually seen, prevails.
Still, besides all the criticism, the existence of the Press Council and the Press Codex is crucial. It is an important means to regulate the media landscape via self-regulation and can thus replace a national media law covering the aspects named. Apart from being an alternative to a media law, self-regulation has to be seen as positive measure in general and especially in the media. It mainly restricts the influence of the state on the media, which is of big importance in a field that should serve as balance to the state power. It gives a lot of responsibility to the society and thus empowers it to act for its own good. The feeling to have the possibility to speak up against the media influences the public in a positive way, making it responsible gives it an active position and makes them finally care much more about the state of the national media.
It also has to say that – despite the negative aspects mentioned – the self-regulation through the Press Codex seems to work. The general tone in German media is rather mild and less sensational than in many other media landscapes. Even though the sanctions cannot really harm the media, they can harm their image and for this reason the media do care about not coming to often under the fire of the Press Council. Also the fact that media usually make a big effort to fight against complaints and charges of the Press Council shows that media do definitely care about its decisions, even though reprimands are played down in public. Generally, the state of the German media rather speaks for than against the power of self-regulation mechanisms.

Regulation by law

However, also in Germany, media is not fully regulated through mechanisms of self-regulation. There do exist regional lass, both for the press and for broadcasting. Press laws are almost completely the same for all federal states. They mostly cover what is also covered in the Press Codex. Of more relevance is thus the law for electronic/broadcasting media, as there does not exist any self-regulation mechanism. Instead of introducing a nation-wide media law, also in this area nearly each federal state (Bundesland) has a regional media authority which issued a regional broadcasting law (Landesmediengesetz).
Based on the Interstate Broadcasting Agreement (Rundfunkstaatsvertrag), which is mainly responsible for public broadcasting, each federal state defined for itself the rules for private broadcasting. The federal broadcasting agencies mainly deal with the licensing, regulation and programming of private broadcasting. Securing pluralism and the prevention of media ownership concentration do also belong to the task of the broadcasting agencies. The specific shaping of the laws differs much more than among the regional press laws.
The media law of North Rhine-Westphalia, which was recently revisited, is seen as one of the most strict. It is mainly based on the action of the media commission. It consists of 41 members, coming from the federal state parliament, several religious institutions, deputies of journalism unions, community broadcasting, from the fields of sciences, education and further education, movie, art and culture, women, social institutions, youth, seniors, migrants, sports, people with disabilities etc. to ensure a fair representation of all social groups. Even though being a very pluralistic group, the members of the parliament are the strongest party in the position. Still, the institution is supposed to be seen as state-neutral and for the public. All members of the commission serve on a voluntary basis and have to act not on their individual interests, but in the interest of the group they are representing. Members of the group are not allowed to be affiliated with any media to prevent corruption in the media commission. There also exists as programme advisory board, much smaller, but with the same requirement of pluralism and thus including different social groups, religions, cultural agents etc. It has to secure that programming guidelines are followed by the different broadcasters, changes in programme structures have to be announced to the advisory board.
The media commission is generally responsible for the enactment of the law. The highest principle is the securing of pluralism in the private broadcast media landscape (including community broadcasting) in the federal state. It explicitly includes the public in the development of the media landscape and fosters its media literacy.
Whoever wants to broadcast in the federal state needs the permission of the media committee. Receiving a broadcasting license is, for example, not possible for national or federal politicians or political parties. The committee decides to share the terrestrial broadcasting capacities among the licensed providers according to pluralism in the programme (with a special regard to education, regional context and the target groups) as well as the general offer of the programme (e.g. language or culture represented). Broadcasters can compete for channels as tenders when they are announced as free by the commission.
For the programming, some general rules like the respect for human dignity, freedom and the religion and opinion of others have to be maintained. Pluralism in the representation of opinions is one of the highest principles. Regional broadcasting needs to be independent of the main broadcaster. If this is not the case, the federal broadcasting agency has the right to secure the independence through certain measures, which are not further defined – and thus gives them a lot of freedom in the practical realization.
To secure pluralism of opinions, no broadcasting company is allowed to be in a situation of dominance to implement its views. However reaches 15% of the television audience share is not allowed to own more than 25% of other broadcasters. Also print media in a dominant regional position are in most cases not allowed to hold more than 25% of a broadcasting company in the same region.
A special part of the law is dedicated to media literacy and the empowerment of the public in media usage. Thus, the federal countries need to introduce special programmes and institutions to foster the people’s understanding of media and their individual and self-determined usage. Also, community broadcasting is supported by law, also financially by the federal broadcasting agency.

Criticism

Opponents see this example of a federal media law as too strict and too close to the state.
Even though with the newest renovation of the law, the part of federal politicians present in the media committee was cut (from ¼ to 1/5), critics still see too much state presence in an institution that is dealing with private media and fear that decisions made might depend too much on the will of federal politics.
In the last two years, the introduction of a new media foundation (which is part of the federal media agency) was discussed strongly in this context: The establishment of the foundation was initiated by politicians with the aim to foster and strengthen local and regional journalism, both through educational offers and financial support. To give this media foundation the biggest independence possible, they used the federal media law to make it part of the federal media agency, using public broadcasting money to finance it. Instead of recognising this as step towards independence, critics saw a political interference into media and the attempt to make private media more state-conform and dependent.
Also the strength and influence of the commission and the advisory board are seen as too strong, especially by publishers and media owners. For example the intervention in broadcasting market shares of print media owners is perceived by the persons concerned as unfair and too strong attempt of market influence, which is not securing pluralism, but rather destroying the market.