Germany

[DE] "Negative list" of the heads of the government of the federal Länder on the concept of broadcasting

IRIS 1996-1:1/23

Volker Kreutzer

Institute of European Media Law (EMR), Saarbrücken/Brussels

The interpretation of the concept of broadcasting has been the subject of discussion in Germany for some time (see IRIS-6:9). At the heart of the problem is the treatment of the new media. Broadcasting is defined in Article 2 of the Agreement on Broadcasting between the Federal States in United Germany (RStV) as presentation and dissemination to the general public of performances of any kind in words, sound or pictures using electrical vibrations with a conductor or without a connecting conductor. This raises the problem of the position of multi-media services. In particular there is the question of whether the new services are intended for the general public or whether an individual service is being offered. Moreover, a performance as defined in the broadcasting treaty requires its content to be intended as a contribution to forming an opinion. In approving the so-called "negative list" put forward by broadcasting specialists in the summer of 1995, the heads of the governments of the federal Länder set out which services they believe should not be considered as broadcasting. These include, for example, e-mail, video conferences, tele-medicine and tele-working. In addition, the heads of the governments agreed that a second group should not be subject to the full range of the provisions of broadcasting legislation because of their slight effect of the formation of public opinion. This group includes, for example, tele-shopping, audio and video retrieval services and tele-games. These services should not require authorisation and should only be required to give notification of their existence. The less their influence in forming an opinion, the less stringent their outline regulation should be. Nevertheless, it will still be absolutely necessary to make provision for the protection of young people and of data, including restrictions on advertising and the right of reply.