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Public Media in Germany: Constitutional Court Calls for Less State Influence

“The new TV Council (Fernsehrat) of the Second German Television entity will be reduced from 77 to 60 members on 1 January 2016. Of these, 20 seats –rather than 34- will be held by representatives of the political sphere/government.”

Jürgen Moritz*/August 2015

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The Federated States have reached an agreement regarding the new composition of the agencies of Germany’s public TV entity ZDF. On June 18, the state leaders signed the new ZDF Governance Contract in Berlin. All 16 state parliamentary representatives must now approve it. The main objective of the new contract is to limit state and political influence in the German public TV channel.

Last March, during a spectacular trial (1BvF4/11), the upper court –Federal Constitutional Court- declared significant parts of the ZDF Governance Contract unconstitutional and called on the Federated States to make changes.

The Constitutional Court is enforcing a rule that limits the number of members of such agencies who are linked to political parties to a maximum of one-third. It has ruled that public media should not become “government broadcasting entities,” must ensure diversity of opinions and pluralism, must view public broadcasting as an essential obligation with special protection under the German Constitution/ Grundgesetz (Article 5), and must operate as far as possible from the government and reflect the diversity and breadth of German society.

The new TV Council (Fernsehrat) of ZDF will shrink from 77 to 60 members on 1 January 2016. Of these, 20 seats- rather than 34- will be held by political/government representatives. Twenty-four seats will go to civil society organizations and churches (nature conservation groups, social welfare associations, unions, employers’ associations, etc.), and these must better reflect the current makeup of society.

Each Federated State will choose its ZDF TV Council representative from existing civil society groups and organizations based on a set of key issues. For example, Berlin chose an entity that focuses on the Internet, Hesse chose a group that represents migrants, Baden Wütemberg selected a youth group, and Lower Saxony chose one that represents Muslims.

The TV Council controls and advises the ZDF public TV channel, represents the interests of the audience, approves the budget, and elects the Channel Director to a five-year term by secret vote. (For a German language article that presents more information, click here.)

The new ZDF Administrative Council will have no more than 12 members beginning in 2017. By order of the court, only one-third of the seats of this entity may be held by individuals linked to politics. The main work of the Administrative Council is to oversee ZDF’s finances and investments.

A small “decision” with a big impact

In 2009, the conservative majority of the ZDF Administrative Council decided not to extend the contract of journalist Nikolaus Brender, the Chief Editor of ZDF. This move led to criticism of the behavior of politicians in public TV councils. The Federated States of Hamburg and Rheinland-Pfalz filed a complaint, asking the Federal Constitutional Court to conduct a judicial review to determine whether the ZDF governance agreement was in compliance with the German Constitution. The court’s March 2014 ruling was very clear and determined that with more than one-third of the votes, the government sector had too much weight in this public media entity as well as a block/control minority. This was a violation of the terms of the Constitution, which ensures diversity of professional media entities in Germany. The public media are to be “independent of the State,” the court confirmed.

For some politicians, this small political move from 2009 had a boomerang effect. The court’s ruling on ZDF entities also had an impact on professional organizations (broadcasting and administrative councils) from other channels and public broadcasters in Germany.

The decision of the Federal Constitutional Court was applauded and welcomed by nearly all journalists, media professionals, union members, civil society organization representatives, and politicians from almost every party.

However, the new ZDF Governance Contract has been criticized by several journalists, media experts, union representatives and center-left politicians. Some of the most noteworthy critiques are that it is too moderate, continues to allow for too much influence by the State and politicians, lacks representation of important civil society groups (such as human rights groups), and that the drafting of the new contract failed to provide sufficient transparency.

There is no doubt that it was not easy to reach a consensus on this new ZDF Governance Contract among the 16 Federated States, which are represented by a variety of political coalitions.

Broadcasting in Germany

After WWII, radio and TV in the Federal Republic of Germany were limited to public broadcasting. There were no private channels. The 1980s ushered in a significant period of renewal and diversification with the creation of the dual broadcasting system, which included both public and private channels and broadcasters.

Today, there are nearly 385 commercial stations as well as 75 public ones. The TV landscape is divided into public and private, superregional and regional, and general and topic-specific channels. Germany has some of the largest public (ARD and ZDF) and private (RTL, Sat1 and ProSieben) channels in Europe and the world.

Depending on the technical platform (land, satellite, cable, broadband, mobile) and digital and analogue reception, over 20 public TV channels are available to German viewers. These include the national channels ARD and ZDF, regional channels with national reach (WDR, MDR, BR) and specialty channels such as the documentary channel Phenix and the children’s channel KIKA.

There are also three international channels (the foreign broadcasting entity “Deutsche Welle,” the French-German channel “arte” and the German, Austrian and Swiss cultural channel “3sat”).

* The author is a political scientist who worked for 18 years in Latin America as a political advisor. He is an expert on media, the press, and public relations. He served as the coordinator of the “German Journalists/ Walter Reuter Prize” in Mexico from 2007 to 2011. 

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