The “Newszone” is a very nicely made news app for young people, one that “understands what’s important to you,” says Südwestrundfunk (SWR) in its own advertising. The broadcaster finds it easy to access, highly customizable, so somehow contemporary. Nevertheless, 16 newspaper publishers want to have the offer removed from the courts because such a news format penetrates into the core business of private publishers. Whether they will be successful in doing so is an open question. The district court of Stuttgart, which wants to decide this Monday (October 17th) on an urgent application by the publishers, is said to have expressed rather skepticism about the publishers’ lawsuit during the hearing.
But whatever the outcome of the legal dispute, which will probably have further instances ahead of it, it reveals a fundamental conflict between the public broadcasters on the one hand and the private newspaper publishers on the other. For more than ten years, they have been arguing about how much space public broadcasters are allowed to take up on the Internet – and where the fee-financed broadcasters are becoming anti-competitive competition for private publishers. It began with the dispute over the Tagesschau app, which the publishers ultimately won before the Federal Court of Justice. It continued with a lawsuit about rbb24, an online news service from the broadcaster RBB; Here, too, the publishers prevailed at the Potsdam District Court. And now the “News Zone”.
Basically, it is a media-historical development that has turned both sides into antagonists. Public broadcasters used to broadcast their linear programs for television and radio, while publishers printed newspapers out of paper. Everyone had their own terrain and their economic livelihood, and all in all, this resulted in journalistic diversity. With the Internet is now a mixed zone emerged in which the two worlds collide. “It’s extremely conflicting, because the boundaries are blurring in the online world,” says Wolfgang Schulz, director of the Hans Bredow Institute in Hamburg. An independent online journalism is developing, which does not differ in whether it is operated by newspapers or radio stations. The clash of cultures is exacerbated by the fact that both sides see their future on the Internet: the publishers because of the declining print circulation, the radio stations because young people hardly watch linear programs anymore. So there is a dash of foresight in the “news zone”. Or despair.
In any case, when the federal states drafted the state media treaty that came into force two years ago, they urgently needed to find a media distance formula: how far does the public service mandate go in the online world? Where does the anti-competitive competition with newspaper publishers begin? The result, however, is a compromise that only the lawyers who then get the process mandates can be happy about. Program-related background information is permitted. But for online-only offers, the same criterion applies that was in use before: “The telemedia offers must not be press-like,” says the state treaty. This is – keyword online journalism – an attempt at demarcation that creates more problems than it solves. Because what “press-like” means is probably not even known to the press itself today, because the publishers are just saying goodbye to thinking in paper categories. Newspaper news on the website has long since kept pace with the once uncatchable radio on the website, modern storytelling incorporates photo spreads and moving images, comments are sometimes spoken into cameras, and the press also does a bit of radio in the age of podcasts. Anyone who practices online journalism almost inevitably acts “press-like”. How is a court supposed to draw boundaries with Gutenberg’s term?
Of course, the purpose behind the impractical criterion is understandable. It is intended to tame the broadcasters financed with state-guaranteed funds so that they do not crowd out private competition. This is based on the ban on subsidies under European law, which severely restricts the use of state money at the expense of competitors. Offers under public law must therefore go through a three-stage test, which, among other things, asks about the journalistic added value. In an online world in which the print industry is looking for opportunities, this is an extremely sensitive issue from a public law perspective. In the 1980s, the institutions were still seen as a guarantor of democracy alongside commercial private broadcasting. Today, however, it is about the role of public broadcasters alongside a traditional press that has never been suspected of being trivial. Where is the journalistic added value? Competition-oriented voices such as Jürgen Kühling, chairman of the Monopolies Commission, are very fundamental: “To put it bluntly, the question arises as to whether there is a need for offers structured under public law at all in view of the variety of private offers,” writes the law professor in a media law commentary. “A possible lack of pluralism is hardly recognizable here.”
Public service broadcasting is thus faced with a considerable dilemma. The future of journalism lies on the Internet, but broadcasters should drive there with the handbrake on. Sure, they’ll get by to some extent with the wide latitude that applies to their “shipment-related” online offerings. But that’s not a satisfactory answer for both sides to a contemporary distribution of roles on the Internet.
Schulz: “The answer cannot be: We simply do everything.”
In any case, the key to the solution – if there is one – should not be held by the regional courts, which count the word content in Internet formats in small-scale processes. “Public broadcasting needs a new generation contract with society,” says Wolfgang Schulz. It must be clarified where there is a social need for the special quality that powerful broadcasters can offer. “The answer cannot be: We just do everything.”
The best friend of public service broadcasting, the Federal Constitutional Court, could provide an impetus for this. However, Karlsruhe has so far been particularly good at providing it with financing and development guarantees. This was always based on the correct idea that the broadcasters have to play their part if the media world continues to rotate. It was a license to expand. However, the court failed to specify the public service mandate in such a way that the distribution of roles with the private press is clear and practicable. The boundaries of growth remained blurred.
Recently, the court would have had the opportunity to make up for this. The Norddeutscher Rundfunk had filed a constitutional complaint against the judgment on the Tagesschau app. However, in February of this year, the court dismissed the complaint on formal grounds in an unfounded decision; she did not meet the “explanation requirements”.