The press is going through difficult times, the print runs have been falling for many years, and by no means all newspapers have adapted to the digital change early on. For the local newspapers in particular, the changeover is an adventure with an uncertain outcome. So it’s not surprising that publishers have had an allergic reaction to a competitor that has been approaching from an unexpected quarter for a number of years. Municipal publication organs, for their part, address the citizens with local news and have long since left the gray look of the official gazettes of the past. This Thursday, the Federal Court of Justice (BGH) made a landmark decision on the admissibility of municipal Internet portals. The city of Dortmund won – and the case shows how much scope there is for municipal information services.
The Dortmund publisher Lensing-Wolff, who Ruhr news publishes, namely against the municipal portal dortmund.de. At the Karlsruhe hearing in May, her lawyer Axel Rinkler referred to the “Institute Guarantee of the Free Press” in the Basic Law, which is intended to avert danger from the press. In other words, if the people of Dortmund feel as comprehensively informed on the municipal portal as they do in the local newspaper, then they will no longer buy a newspaper.
The district court in Dortmund had upheld the lawsuit brought by “Ruhr Nachrichten”.
While the District Court of Dortmund had upheld the lawsuit of the publisher, the publisher now suffered a defeat at the Federal Court of Justice – as before at the Higher Regional Court of Hamm. The Karlsruhe court emphasizes the “requirement for the press to remain remote from the state”. This is a kind of guarantee certificate of the Basic Law, which offers newspapers protection from municipal competition, i.e. for media in state hands. “The public sector must therefore hold back when it comes to press work,” said Senate Chairman Jörn Feddersen when the verdict was announced. There shouldn’t be any “substitution effects” through municipal offerings “that result in the private press no longer being able to fulfill its special task in the democratic community”.
In other words, it’s not just about business, it’s about democracy, which is jeopardized when a local media run from the town hall forces the private press out of the market. The portal dortmund.de is, of course, according to the BGH, still cautious enough. And this despite the fact that there was a smorgasbord of colorful articles on the website on the May 2017 deadline relevant to the procedure, about “Stories from the district”, the “Hofcafè im Kiez” or an interview entitled “We don’t wear any in winter High heels”. According to Michael Rath-Glawatz, who represented the publisher before the lower courts, it was the city’s declared goal to create a digital counter-newspaper to the Ruhr news to offer in which one did not feel properly represented.
Freedom of the press is jeopardized when what is available in the press shapes the overall impression
According to the Federal Court of Justice, the decisive factor for the admissibility of municipal portals is not that individual contributions are too journalistic. A municipal information offer can only be prohibited if articles, as one actually knows them from the press, shape the overall impression. At the same time, he made it clear that the quantitative relationship between “permissible” and “inadmissible” contributions is not important. This is because a municipality could otherwise simply increase the number of undoubtedly urban texts in order to present the journalistic content as insignificant – because the capacity of the Internet knows no bounds. The proportion of journalistic texts on dortmund.de is only one percent, says Sören Spoo, Head of Public Relations. But in the BGH calculation that plays no role.
The BGH is thus building on its judgment of 2018 on the printed official gazettes. At that time she had Southwest Press with their lawsuit against it city newspaper success in Crailsheim, Baden-Württemberg. And at that time, the requirements of the BGH still sounded pretty strict. One could almost think that the BGH still wanted to prescribe the dreary gray of the official gazettes as a model for the municipalities. Municipal publications would have to be limited to factual information. “This also means that municipal publications must not use (boulevard) illustrations and the layout must not be designed in the manner of a daily or weekly newspaper,” it said at the time. In addition, the court objected to “general articles about local companies, the evaluation of private initiatives or general advice to readers” – this is a matter for the press. Sports, art and music are also normally not subjects for municipal public relations work.
Another BGH judgment could provide further information: In Munich, a lawsuit against muenchen.de is pending
Did the BGH move away from this strict line in the dortmund.de ruling? The written justification is still pending, but the verbal pronouncement of the verdict sounded like more generosity from the highest court towards the municipalities.
If you look at dortmund.de today, it is not difficult to identify the portal as a municipal service. But it’s by no means limited to basic municipal information from waste statutes to driver’s license exchanges. Anyone who clicks through the offers will find a lot of what is familiar from local newspapers under headings such as “Life in Dortmund” or “Leisure, Culture, Tourism”, at least in times when there is a lull in topics. The farm markets invite you to dawdle and barter, the zoo is happy to have offspring, children go on insect safaris. There is also a detailed calendar of events, which is always part of the basic offer for every local newspaper. Lawyer Rath-Glawatz first wants to study the verdict, but leaves no doubt that he considers going before the Federal Constitutional Court to be quite possible. Because it’s about freedom of the press.
A Munich procedure may provide further information about the BGH line. Several publishers, including the Southgerman newspaper, have sued the portal muenchen.de and won before the district court and the higher regional court in Munich. That is almost a sales portal, much more problematic than in Dortmund, city information played a more marginal role, says Rath-Glawatz. In this case, there is also a question that has not yet been answered conclusively: to what extent are municipal portals allowed to accept advertisements and thus intervene in the publishers’ business? The case is not yet final; in November the Federal Court of Justice hears.