Media Law

Question 1

Definition of “media law”

Answer 1

Entirety of all legal issues and legal regulations (law, statutes,
judgements, case law, international treaties) that relate to the media (press, book, radio,
television, film, internet, social media) or result therefrom, e.g.
– International Law: regulations concerning freedom of speech and/or media in the Universal Declaration of Human Rights
– European Law: EU Regulations, e.g. data protection law; EU Directives, e.g. Digital
Services Act
– National law in Germany: Deutsche Welle Act, press law
– Internal Regulations of Deutsche Welle: Articles of Association of DW, guidelinesetc.

=> “Media Law” is a collective term, which summarizes different fields concerning media: communication, information, technical conditions of broadcasting.

Question 2

not all legal matters relating to the media are regarded as “media law”:

Answer 2

purchase of technical equipment or office supplies;
* renting of premises;
* damage claims, e.g. due to a car accident;
* employment contracts;
* taxation, e.g. VAT, income tax;
* safety regulations according to building law and fire protection; etc.

Question 3

Broadcasting law

Answer 3

All national laws and regulations as well as international treaties:
– that regulate for television, radio and internet offerings
– subject matters like:
* freedom of reporting,
* tasks, mission and goals for a public broadcaster,
* internal organisation and structure of a public broadcaster, e.g. management,
broadcasting + administrative board,
* regulations concerning advertising + sponsoring,
* regulations for the protection of children and minors concerning broadcasting violence, pornographic offerings etc.
* necessary approvals of state supervision for private broadcasters,
* regulations concerning financing, financial management, accounting + auditing.

Question 4

Press law

Answer 4

definition: Press = all periodically published print (paper) products or electronic newspaper.
The entirety of provisions that regulate the press and the effects of press reports, especially:
– Constitutional guarantee of the freedom of the press = no governmental influence.
– Acquisition of information and the right of journalists to refuse disclosing their sources.
– Obligation to publish counterclaims to false factual allegations.
– Regulations on limiting the freedom of press in order to protect privacy rights.

Question 5

Telecommunications law:

Answer 5

Legal regulations on the technical process of transmitting data, regardless of its content.
– Telecommunications laws regulate the technical processes of sending, transmission and reception of signals through corresponding technical systems in the telecommunications
sector.
– The purpose of the regulation is to
* guarantee services and telecommunications infrastructures,
* to regulate frequencies and to promote competition between state-owned
telecommunication organisations and private telecommunications companies(e.g. Deutsche Telekom, British Telecom, France Télécom, Vodafone).
– For example:
* regulations which affect the operation and access to cable networks and mobile
network services,
* network providers, that only make their supply networks available without offering
content themselves.

Question 6

Copyright law:

Answer 6

Laws and legal regulations that protect intellectual works of literature, science, art, if they have a minimum of creation, art, design, uniqueness etc.
e.g. novels, poems, paintings, music, photos, films/ videos, academic papers and buildings.
– Copyright work as an individual, intellectual creation is protected by personal rights, such as* the right to publication,
* the right to recognition of authorship,
* prohibition of damaging/ distortion of the work (e.g.: portrait => mustache).
– Furthermore, the creator is protected in the (commercial) use of his work. The creator can determine whether and how his work is (commercially) used, which includes:
* copying the work;
* the exhibition of (physical) works, such as sculptures;
* the right to transmission via broadcasters;
* the right to publication in a newspaper
* the right to publication on the internet + Social Media (“right of making available”), etc.– => right to get a reasonable and fair compensation/ royalty/ fee = money.

Question 7

Universal Declaration of Human Rights

Answer 7

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

but: the Universal Declaration of Human Rights is not binding international law for the member states of the UN, but only a non-binding recommendation of the General Assembly of the UN.

Question 8

International Covenant on Civil and Political Rights (1966)

Answer 8

applies to 173 states (Germany since 1973, USA since 1992),
– the covenant commits its parties to respect the civil and political rights of individuals,
including the right to life, freedom of religion, freedom of speech, freedom of assembly,
electoral rights and rights to due process and a fair trial.
– for these states a binding international treaty right.

Section 1: “the right to hold opinions without interference” = a purely private right to form and hold an opinion = freedom of thought: not also: freedom to express an opinion.
* Section 2 = Freedom to express an opinion, but section 3 allows this freedom to be restricted by law for all possible public purposes, reaching as far as censorship, because the protected objects of section 3 (“national security, public order”) are subject to the definition of the member states. * Furthermore, there is no court or other international authority that interprets the “International
Covenant on Civil and Political Rights” in a binding way;
* According to Art. 28 ff. of the covenant, there is a “Human Rights Commission”; but its decisions on violations of the covenant only have an informative character and do not oblige the states to take any measures.

Question 9

Art. 10 of the „European Convention on Human Rights“ (ECHR)

Answer 9

= ECHR is binding law for the 46 member states

European Court of Human Rights (ECtHR) in Strasbourg
= Court, that decides whether a state has violated the ECHR and can award damages to those, whose rights have been infringed. Every citizen can issue claims regarding the violation of their rights by a signatory state, especially regarding violations of their freedom of opinion and
information (Art. 10 ECHR).
* A claim before the ECtHR is only admissable, if all domestic legal measures have been
exhausted.
* In its judgment, the ECtHR decides whether or not the ECHR has been violated by a state and whether the respective state is bound by the judgment of the ECtHR.
* Decisions of the ECtHR guarantee rights to freedom of the media in Europe and therefore are becoming more and more important for the European media, as they do not only give binding
judgments on particular cases, but also offer a sense of orientation to all signatory states when it comes to similar cases.

Art. 10 ECHR: Freedom of expression
(1) Everyone has the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by public
authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be
subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of
information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Art. 10 ECHR emcompasses a “positive” and a “negative” obligation of the signatory states:
- negative: states are not allowed to infringe upon the rights of freedom of communication, as
long as this is not explicitly permitted
- positive: states have obligations to protect: they must guarantee by way of law, that
communication rights can be made use of and are not endangered by third parties (e.g. powerful companies)

Question 10

Freedom of Speech:

Answer 10

Freedom of Speech:
* Art. 10 ECHR protects the right to express one’s opinion towards others. This right includes:
- allegations/ statements/ expressions of fact and judgements/opinions.
- not just opinions as contributions to a public discussion in a state, which are the basis of
democratic development and therefore protected (public or political opinions),
- but also purely private and commercial expressions of opinion (such as advertising).
- expressions of opinion that may be unpopular, controversial or shocking.

Question 11

Freedom of Press

Answer 11

Art. 10 ECHR also covers freedom of the press (not expressly mentioned in Art. 10 ECHR):
– Freedom of the Press = dissemination of information via periodically published prints
(newspaper, magazine etc.).
– in essence, freedom of the press means that the press may report freely, without state
interference and that the activities of the persons working for the press are protected:
* from obtaining information,
* writing news and opinions,
* producing the newspaper,
* working out the economic basis ( advertising, publicity)
* to the dissemination and distribution of the newspaper.

in the foreground, the acquisition of information by journalists and the confidentiality of sources of information linked with it is protected (right to refuse to give evidence). * ECtHR: The press has the role of a “public watchdog” that must be able to obtain information as unhindered as possible; the precondition of freedom of the press as an essential foundation of every democratic society is the protection of journalistic sources.
(ECtHR of 27.03.1996 in the case of Goodwin v. UK)
* interferences with the freedom of the press are permitted only in the case of “pressing social
need” or to protect privacy rights (e.g. paparazzi-journalism).

Question 12

Freedom of Broadcasting

Answer 12

Art. 10 Para. 1 ECHR protects Freedom of Broadcasting as a human right: every individual may operate broadcasting; private broadcasting must also be economically possible.
* main content: freedom of broadcasting means free reporting via television, radio and internet;
core area of freedom of broadcasting: freedom of programme = contents of the programme aredecided by broadcasting stations and not by public authorities.
* Art. 10 Para. 1 Sentence 3 ECHR: Broadcasting operations can be made subject to state
approval (the radio or television broadcaster must have the necessary reliability to ensure that the diversity of opinions is preserved in its programs to a minimum extent and that minorities can also have their say). * ECtHR: “The emphasised importance of broadcasting for public opinion-forming and thus for a democratic society is comparable to freedom of the press. Restrictions on broadcasting freedom on account of Art. 10 Para. 2 Sentence 3 ECHR are first and foremost admissible for technical reasons … as well as the needs of the public.”

Question 13

Barriers and states‘ powers to limit freedom of opinion (Art. 10 Para. 2 ECHR):

Answer 13

– Restrictions must have a legal basis: the law must be accessible to every citizen and must be so clear and precise, that the citizen can adjust his/her behaviour accordingly, if
necessary after consultation with a lawyer.
– The restricting law must follow one of the legitimate goals mentioned in Art. 10 Para. 2
ECHR, for instance the protection of another person‘s good reputation or technical reasons.– But: „necessary in a democratic society“: it has to be examined, whether limiting the
freedom of opinion is necessary and adequate taking into consideration the outstanding
importance for democracy. Thus, the restriction must be adequate in relation to the
legitimate goal, so in each case the contradicting interests must be examined.

Question 14

Law of journalists

Answer 14

legal questions regarding journalists‘ work

Question 15

Can every topic be addressed ?

Answer 15

Standard: public interest in information: => A journalist is generally allowed to report due to freedom of press and broadcasting.
– Limitations:
* national laws,
* false information/allegations,
* privacy rights.

Question 16

Is an editor-in-chief / head of an editorial department allowed to dictate or refuse topics?

Answer 16

Freedom of the press and broadcasting only have external effect; no „inner“ freedom of the press and broadcasting = the journalist is not allowed to write or broadcast what he/she
wants.
– Thus: editor-in-chief / head of an editorial department is allowed to give instructions
regarding themes and style (e.g. length, graphic material).
– Limitations: the journalist is not obliged to issue false reports or to label reports with his/her name, if the journalist can not reconcile the report with his/her conscience.

Question 17

Research
* Where is a journalist allowed to do research?

Answer 17

Private residential property/ offices, houses and properties, generally not without permission (domiciliary right).
– Permitted: observations and recordings (photographs, film, interview, direct quotes) of
* Public places, for example public roads, public buildings,
* Rooms open to the public, for example shopping-centers, restaurants during opening hours, as long as entry has not been explicitly forbidden.
– Generally forbidden: access to private rooms by deception. Exception: controlling function of press and broadcasting; therefore a violation can be justified in cases of overwhelming
public interest, if it is not possible to gather the information any other way.
– Recommendation regarding private buildings, properties etc.: ask for prior written
permission to film.

Question 18

May information be used, which has been obtained illegally by another person?

Answer 18

– Generally it may, if for the disclosure of political scandals/ corruption or societal injustices or in the case of an overwhelming public interest. Otherwise, the media could not fulfill its
controlling function in public life and society („public watchdog“).
– It may not, if the information affects private affairs and the only reason for reporting is public sensation and curiosity.
– A journalist must not behave criminally or instigate someone to behave in a criminal way in order to get hold of information; this is not permitted by the principles of freedom of the
press and broadcasting! (Exceptions are possible in cases of minor violations).

Question 19

May anything be filmed/photographed?

Answer 19

– Generally it may, but there are limitations:
* no photographs and videos in private areas of life (e.g. bedrooms; private rooms which form part of the core area of private life, e.g. bathroom).
* private persons: approval for publication must be given.
* public persons/ clebrities (politicians, actors, musicians, athletes etc.): no approval
needed, if they move in public places due to their job (public institutions, events,
stadium etc.); approval usually needed in private places and circumstances.
* public goods and property (houses, cars etc.): generally no approval needed, if you
can see it from a public place.
– Individual cases:
* Works of art: approval of the creator is needed if it is protected by copyright.
* Sporting events: the organiser has householder´s rights; regularly: exclusive contracts.* Military areas and camps: mostly no filming/photography permitted.

Question 20

Can anything on the internet be used ?

Answer 20

– texts, graphics, photos, films, audio material: regularly protected by copyright !
* consequence: use is permitted, if authorised person has agreed thereto (licence).
* important: if an authorised person agrees to publication on a specific homepage, this does not mean he/she also has agreed to publication on other homepages !
* official publications, i.e. laws, official proclamations, court decisions are not
copyrighted.
– the internet is full of incorrect information („fake news“) and dubious sources: often, a
journalist`s duty of care requires additional personal research, if the source appears to be doubtful!
* information from public authorities (police reports, press releases) can be assumed to be true and may be published without additional research.

Question 21

Is reporting based on a suspicion permitted?

Answer 21

– Suspicion = reference point only, no evidence.
– Prerequisites:
* Overwhelming public interest can be assumed, if the topic is of general importance, i.e. political, social abuses will be detected.
It cannot however be assumed, if the topic is of public interest due to curiosity and
sensationalism.
* References exist in the sense of sources that can be proved and verified;
Not, if they are purely based on allegations without verifiable facts.
* Suspect had the opportunity to express his/her view (“X denies that“).
* In the report, the person concerned is portrayed as a suspect (“alleged”), not as a
criminal person/ perpetrator.
* Relieving aspects are mentioned (e.g. „on the other hand…“).
– Example: Informant reports on a conversation from a table nearby, from which he gathered that the mayor is corrupt.
– Option: Due to this information, the journalist conducts research and comes across a
cheque which proves that the mayor received large sums of money.

Question 22

Principles of journalists‘ duty of care:

Answer 22

Principles of journalists‘ duty of care:
(If a journalist conforms with the principles, he/she does not have to worry about legal actions for revocation, damages or prosecution!)
– Is all information checked for reliability?
Principle: the more a person is affeted by a report, the more the sources must to be
examined. (Example: report on pending bankruptcy of a bank; report on grievious criminal act).
– Did the affected party have an oppurtunity to express their view?
* The deadline to give a statement must not be too short
* Silence does not mean: agreement,
* The denial and essentials of the statement must be recorded.
– Once the report is complete; check whether relieving aspects are mentionedExample: the head of administration always placed orders with an old friend of his. What
could be missing?: the most economic offer has always been that of his old friend.

Question 23

Drafting a report/ Creating a story

Answer 23

Preservation of the right of privacy:
* In general, photos, films and data of private persons are not allowed to be published without their approval!
In practice, this means: anonymity by changing names, alienating voices and faces, licence plate numbers etc.
* Exception: Where somebody published private affairs in interviews, hompage, blog etc. of his/her own accord
Example: a person gets interviewed in the street; shortly before broadcasting, the
person calls and says that he/she was on sick leave and his/her employer must not
see him/her on television. The person wants to prevent the broadcast.
Here: interview was given voluntarily, knowledge of publication on television, journalist did not trick him/her, therefore: broadcasting is permitted.
* Example: documentary about a big pop concert in a stadium. Somebody is shown from a distant shot conveying the atmosphere of the concert. That person thinks his/her
privacy is invaded.
Here: there is a public interest in broadcasting the concert. The person was part of a crowd and shown only as a marginal figure. Conclusion: admissible, unlike a close-up, which is not permitted.
* Considerations: public interest ↔ privacy

Reports on celebrites (politicians, economic leaders, actors, musicians, atheletes, aristocrats,
public figures etc.):
– Difference to „normal“ people: generally celebreties are subjects of public interest
– But: celebrities also have privacy rights.
– On a scale: to what degree has the celebrity revealed his/her private life to the media?– In general: a person‘s private area of retreat is protected (house/ apartment, property, hotel room, shielded restaurant or private beach).
– If a celebrity moves in public: the public interest must be rooted in information, not just pure curiosity
Example: The previous day, a politician was deselected from his position as head of
government. A journalist meets him while shopping and follows him discreetly. He sees the prices of the bought articles. Is he allowed to report about this?
Here: principle: politicians are allowed to go shopping unrecognised; but: public interest in how a politician handles his deselection and failure; therefore: admissible;
Limits: report about details, which another customer never would have seen, i.e. purchase price, amount.
– wife/husband/partner: reporting permitted, if he/she enters the public voluntarily; children: reporting never permitted.

When it comes to Art.10 ECHR, the ECtHR differentiates between:
– politicians → very strong public interest in information ,
– Other public figures → increased public interest in information,
– ordinary persons → no public interest in information.
* According to the ECtHR it is crucial to decide, whether the report/photo/story in question can
contribute to a discussion of public interest.
* Contempory history / current affairs/ public interest in information:
– Has to be construed extensively,
– Not just events of historical and/or political importance, but all questions of general societal interest,
– The key to freedom of the press and broadcasting is allowing the media a wide margin of appreciation in deciding, according to publistic citeria, what is in the public interest. * Principle: In each case, it is always necessary to weigh the public interest against the affected person‘s privacy rights !!!

Question 24

Interviews:

Answer 24

– Generally, before publishing an interview, it does not have to be presented for approval.
– Exception: contract/ agreement, that the interview has to be approved of before publishing (= condition to authorise). But in practice, this will often be necessary for getting an interview in the first place. Background: right to personal autonomy whereby every person can decide whether he/she wants to give an interview.
– It is different, if single comments are contained in an editorial report: due to freedom of the press and broadcasting, the need to seek approval would violate free reporting.
– Changes made by interviewed person because of condition to authorise: changed version or not able to publish.
– Changes made by journalists: grammatical and stylistic corrections are admissible (filler
words: “well”, „uhm“).
– Shortening is allowed, if the meaning does not change or gets deformed.

Question 25

Reporting of criminal offences:

Answer 25

 in some countries: live TV-reports of a court hearing are allowed.  other countries: in court, film and sound recordings during the court hearing are not
permitted, so that the process participants are not influenced by the media.  Before and after the hearings and during breaks, the court may allow recordings; then the defendant must tolerate television coverage.  At large media interest (a spectacular case; celebrity) the pool solution is often the best solution: one television station provides all other recordings/ footage.  Live blog or Twitter from hearing are permissible, unless the chairmen or chairwoman orders devices to be turned off for personal rights.

Question 26

Counterclaims after publication

Answer 26

• A person, who is affected unfavourably by media report (or his/her lawyer) has different
  possibilities of how to react:
  – correction
  – counterstatement
  – forbearance
  – compensation for damage/ compensation for pain and suffering.
• Correction:
  – In the case of a report of false facts: claim to correction thereof by
• revocation: the entirety of the report is false and is withdrawn completely ,
• Corrective statement: only parts of the report are corrected,
• supplement, e.g. report on criminal procedure, what is missing, is the closing of the
  proceedings.
  – No claim to correct unimportant details; no claim, if it is made too late and the report is no longer in the spotlight of the public (after weeks or months).

Question 27

Counterstatement:

Answer 27

– Person concerned is able to present his/her view on an allegation of fact.
– Facts only (= provable) ↔ opinions, commentaries, value judgement.
– Whether the substance of the report or counterclaim is true or false, does not matter .
– In practice: if the editorial department has doubts about the correctness of the report, it
should aim for an amicable agreement, i.e. print of a letter to the editor, interview with
person concerned.
– Generally, a counterstatement must be published in the same spot and in the same
size/appearance as the first report, i.e. front page, front size.
– A counterstatement can be abbreviated, as long as the meaning is not changed.

Question 28

Forbearance:

Answer 28

– The offended/aggrieved party demands that, in the future, the broadcasting company
/newspaper shall not report as such again (untruths, offensive/insulting judgements etc.) or that certain pictures/ film material shall not be published again.
– prerequisite: report was illegal, which means the aggrieved party has been violated in
his/her right to privacy, because
* an untruth was spread,
* the report depicted aspects of the aggrieved party’s private life, to an extent that was not permitted,
* unauthorised photos/footage was shown,
* he/she was insulted,
* risk of repetition of incorrect reporting.
– Difference to counterstatement:
* can also refer to expressions of opinion (counterstatement: facts only).
– often: declaration to cease and desist with a penalty clause = binding agreement between the broadcasting company / press company and the aggrieved party that certain facts or
value judgements are not reported/ broadcasted in the future again and that if the
agreement is breached, a large sum of money must be paid to the aggrieved party.

Question 29

Compensation for damage:

Answer 29

– Aggrieved party has to prove that damage occurred due to the incorrect report and define the extent thereof.
Example: false report about a company’s expected insolvency, hence a company does not obtain credit and looses commissions.
– Prerequisite: culpable action on behalf of the journalist, which is only the case, if the
journalist violates rules of his/her journalistic duty of care.
Example: no violation of journalists duty of care, if the information on the company’s
bankruptcy has officially been spread by a public authority. The journalist can rely on such statements.
– Compensation for damage in terms of damages for pain and suffering =
financial compensation, if the report violates the aggrieved party in his/her honour or
personality and compensation is possible by monetary settlement, e.g. in the case of
publication of personal photos without permission.

Question 30

Mission according to Deutsche Welle Act

Answer 30

• Germany’s media voice in the world.
• Presentation of events and developments from a German and European perspective abroad.
• Reporting in journalistic independence for exchange and understanding between cultures and peoples
• Access to the German language and to life in Germany and Europe