What are the disadvantages of free media

Media policy

Uwe Hasebrink

Dr. Uwe Hasebrink is Director of the Hans Bredow Institute for Media Research and Professor for Empirical Communication Research at the University of Hamburg. His research interests are primarily the current changes in media use and their consequences for public communication. www.hans-bredow-institut.de

Certain people or groups can gain so much media influence that it runs counter to the guiding principle of diversity of opinion. What are the strategies for the possible influence of the media on opinion formation? What forms of control are there?

Maybrit Illner - Political talk show on ZDF 2016: Greed instead of remorse - is the banking crisis coming back? (@ Picture alliance / Eventpress). (& copy picture-alliance / ZB)


introduction

The prevention of a dominant power of opinion is a goal of democratic societies. Democracy presupposes the free formation of individual opinions and the formation of political will by all citizens. Opinion formation depends on the respective values, the situation in life, the knowledge and previous experience of the people. They form an opinion about what the society they live in should look like and which political decisions they approve or reject.

Aspects of the guiding principles of democratic societies:
  1. As many different perspectives as possible flow into this opinion-forming process.
  2. The different life situations of the different population groups are expressed.
  3. In this sense, pluralism is an essential principle of democracy.
For the process of opinion-forming, information conveyed by the media, in particular the media-based offers of journalism, play a decisive role. They create the prerequisites for the social and cultural diversity of modern societies to be recognizable and manageable. However, this potential of the media also harbors dangers: Certain persons, groups or institutions, both from the state and from the non-state sector, who use the media can gain such great influence in the opinion-forming process that this runs counter to the guiding principle of pluralism would.

Against this background, one of the main goals of media policy in democratic societies is to prevent individuals or groups from gaining too much influence on the formation of public opinion, i.e. so-called "power of opinion". It is about securing the diversity of opinion-forming processes or, to put it the other way round, about preventing concentration processes in the media sector. This aspect of media policy is the subject of this article.

First of all, it is outlined which regulations media policy in Germany has created for media-specific concentration control. Building on this, it will be discussed which current challenges arise from the media change for these regulations. A solution to these challenges requires an in-depth examination of the way in which different media can be relevant for forming opinions. Finally, an outlook on the further development in this field of media policy is given.

The basic model of media-specific concentration control in Germany

The media-specific concentration control in Germany has so far largely related to the medium of television. The reason for this is that television has so far generally been assigned the status of a leading medium for public communication and opinion-forming [1]. According to the Federal Constitutional Court, the constitutionally prescribed objective of the regulatory mandate to the legislature for television is the "exclusion of one-sided, highly imbalanced influence of individual broadcasters or programs on the formation of public opinion, namely the prevention of the emergence of dominant power of opinion" [2].

The concept of the predominant power of opinion was adopted in the Rundfunkstaatsvertrag (RStV), which is the relevant legal basis for television in Germany. The concentration control mechanism is based on the share that individual programs or all programs of a broadcaster have in the total television consumption of the population.

Source text

Federal Constitutional Court - 4th broadcasting decision (BVerfGE 73, 118)

I. The decisive factor for the constitutional assessment is the freedom of broadcasting guaranteed in Article 5, Paragraph 1, Sentence 2 of the Basic Law.
  1. The freedom of broadcasting serves the same task as all guarantees of Art. 5 Abs. 1 GG: the guarantee of free individual and public opinion formation (BVerfGE 57, 295 [319 f.]). This takes place in a communication process in which broadcasting has the task of a "medium" and "factor": It is incumbent on it to provide information as broadly and comprehensively as possible; he gives the individual and the social groups the opportunity to shape opinion and is himself involved in the process of opinion formation. This is done in a broad sense; Opinions are formed not only through news programs, political commentaries or series of programs about problems of the past, the present or the future, but also in radio and television plays, musical performances or entertainment programs (BVerfGE 59, 231 [257 f.] With further references - Free This task initially requires the broadcasters to be free from state control or influence. This can be done just by a merely negatorial design. In addition, however, a positive order is required which ensures that the diversity of the existing opinions BVerfGE 73, 118 (152) BVerfGE 73, 118 (153) in broadcasting is expressed as broadly and comprehensively as possible. In order to achieve this, material, organizational and procedural regulations are required which are oriented towards the task of freedom of broadcasting and are therefore suitable for achieving what Article 5 (1) of the Basic Law is intended to guarantee. How the legislature wants to fulfill its task is - within the limits drawn by the guarantee - a matter for its own decision (BVerfGE 57, 295 [320 f.]).
[...] 2. When assessing the requirements resulting from this for the broadcasting legislation of the federal states, the modern developments in the field of broadcasting briefly described above (A I 1 *) must not be disregarded. These are important for the interpretation of the constitutional guarantee: They belong, as the case law of the Federal Constitutional Court on the "special situation" of broadcasting (AI 1 * above), to the concrete life situation to which the basic right is based and without its inclusion an interpretation that unfolds the normative effect of freedom of broadcasting does not appear possible.
In this regard, the technical development is important, as a result of which the conditions for the organization and distribution of radio broadcasts have improved, but which do not change the fact that the number of programs that can be received by all participants in the area of ​​a federal state or in the local area is still longer Time will be limited to terrestrial broadcast programs. Also of importance are the economic conditions of the production and distribution of private radio programs and their effects, in particular the still unusually high financial outlay for television programs, which must be covered mainly by income from commercial advertising, and a similar one, albeit more favorable on the whole Situation for private radio programs. Finally, of importance is the emergence of a European or even beyond Europe broadcasting market and the associated increased supply of programs broadcast from abroad, some of which can be received directly in BVerfGE 73, 118 (154) BVerfGE 73, 118 (155) of the Federal Republic become.

[…]

3. The need to take this situation into account when interpreting Article 5, Paragraph 1, Sentence 2 of the Basic Law cannot mean that the legislature would be constitutionally required to permit private broadcasting only under conditions that would make private broadcasting programs highly effective Dimensions complicate, if not exclude. This would be countered by the constitutional rulings emphasized by the Federal Constitutional Court in favor of the admissibility of private broadcasting, which is just as important in the interpretation as the developments presented. In addition, it should be noted that the constitutionally guaranteed freedom of broadcasting affects the entire broadcasting system, not just private broadcasting, but also public broadcasting. If those developments are recognized in this overall context, they do not necessitate the conclusions drawn by the applicants. Rather, the decisive factor is that the broadcasting system in its entirety corresponds to what is constitutionally required as far as possible. This can also be the case in a dual system of broadcasting, as it is currently developing in the majority of the German federal states on the basis of the new media laws.
In this order, the indispensable "basic service" is a matter for the public broadcasters, to which they are able because their terrestrial programs reach almost the entire population and because they do not depend on high ratings in the same way as private broadcasters, and therefore to a content comprehensive range of programs. The task thus set comprises the essential functions of broadcasting for the democratic order (cf. BVerfGE 73, 118 (157) BVerfGE 73, 118 (158) BVerfGE 35, 202 [222] with further references - Lebach) as well as for cultural life In the Federal Republic of Germany: In the light of the expansion of the broadcasting offer to include privately organized and European programs, it is important to ensure that the classic mission of broadcasting is fulfilled, which in addition to its role in the formation of opinion and political will, in addition to entertainment and regular reporting outgoing information includes his / her cultural responsibility. This is especially true from the point of view of the developing and growing European broadcasting market. Under the conditions of such a market, area-based national, in particular terrestrial broadcasting, precisely these essential functions remain (more on this: Bullinger, AfP 1985, p. 257 [258 ff.]). According to the current state of affairs, they are primarily to be regarded as those of the public broadcasters. In this and in the guarantee of the basic service for everyone, public broadcasting and its special character, namely the financing through fees, find their justification; the tasks that are assigned to him in this respect make it necessary to ensure the technical, organizational, personal and financial preconditions for their fulfillment.

[…]

This guideline gives the legislature and the bodies responsible for the approval and selection of private broadcasters a sufficiently clear and binding guideline. However, it does not appear to be sufficiently determined for control by the (external) bodies created to ensure diversity and by the courts, because it says too little about when the actual development corresponds to it in detail and where the line is drawn beyond one There is a violation and sanctions are required. The control therefore requires a clearer standard that focuses on significant and thus clearly recognizable and verifiable defects. Such a can only be a {* BVerfGE_73_118_160} {* BVerfGE_73_118_159} basic standard of balanced diversity. This does not oblige the establishment of arithmetic equality of directions of opinion, for example through legally prescribed compensations, and does not require any intervention in the case of individual imbalances of minor importance; However, it still encompasses the essential prerequisites for diversity of opinion, which must be protected against concrete and serious threats: the possibility for all directions of opinion - including those of minorities - to express themselves in private broadcasting, and the exclusion of one-sided, to a large extent unequal influence of individual organizers or programs on the formation of public opinion, in particular preventing the emergence of dominant power of opinion. If these requirements are not complied with, the limit of a violation of Article 5, Paragraph 1, Sentence 2 of the Basic Law is exceeded in any case. It is the task of the legislature to ensure the strict implementation of this basic standard through material, organizational and procedural regulations (cf. BVerfGE 57, 295 [320]). In particular, it is incumbent on him to counter tendencies towards concentration in good time and as effectively as possible, especially since undesirable developments are difficult to reverse in this respect (BVerfGE loc. Cit., P. 323).

Source: http://www.servat.unibe.ch/dfr/bv073118.html

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The starting point is the assumption that a program can exert as much influence on the formation of opinions as it is actually used by the viewers. No distinction is made between different program types. That is, a special interest channel for information, like a sports channel or an entertainment channel, is measured solely on the basis of the viewing time that it allotted. Section 26 (2) of the Interstate Broadcasting Treaty states: "If the programs that can be allocated to a company reach an audience share of 30 percent on average over a year, it is assumed that there is predominant power of opinion".

Source text

Rundfunkstaatsvertrag - RStV

III. Section: Regulations for Private Broadcasting

Section 26 Ensuring diversity of opinion on television
(1) A company (natural or legal person or association of persons) may broadcast an unlimited number of programs nationwide on television in the Federal Republic of Germany itself or through companies attributable to it, unless it thereby gains dominant power of opinion in accordance with the following provisions.

(2) If the programs attributable to a company reach an audience share of 30 per cent on average over a year, it is assumed that the prevailing power of opinion is given. The same applies if the audience share of 25 percent is reached, provided that the company has a dominant position in a media-relevant related market or an overall assessment of its activities on television and media-related related markets shows that the influence of opinion achieved is that of a company with a audience share of 30 by the hundred on television. When calculating the audience share according to sentence 2, two percentage points are deducted from the actual audience share if the full program with the highest audience share attributable to the company includes window programs in accordance with Section 25 (4); if broadcasting time for third parties is recorded at the same time in accordance with paragraph 5, a further three percentage points are deducted from the actual audience share.

(3) If a company has obtained predominant power of opinion with the programs attributable to it, no approval may be granted for further programs attributable to this company or the acquisition of further attributable participations in broadcasters may not be confirmed as harmless.

(4) If a company has obtained predominant power of opinion with the programs attributable to it, the competent state media authority proposes the following measures to the company through the commission to determine the concentration in the media sector (KEK, Section 35 Paragraph 2 Clause 1 No. 3):
  1. The company can give up stakes in event organizers that can be attributed to it until the company's attributable audience share falls below the limit set out in paragraph 2 sentence 1, or
  2. in the case of paragraph 2 sentence 2 it can reduce its market position in media-relevant related markets or give up stakes in organizers attributable to it until there is no longer any prevailing power of opinion according to paragraph 2 sentence 2, or
  3. it can take measures to safeguard diversity within the meaning of sections 30 to 32 of the organizers attributable to it.
The KEK discusses the possible measures with the company with the aim of bringing about an amicable settlement. If no agreement can be reached or if the mutually agreed measures between the company and the KEK are not carried out within a reasonable period of time, the competent state media authority must revoke the approvals of as many programs attributable to the company as determined by the KEK until there is no prevailing power of opinion the company is more given. The selection is made by the KEK taking into account the particularities of the individual case. Compensation for financial disadvantages due to the revocation of the admission will not be granted. (5) If an organizer with a full program or a special-interest program with a focus on information achieves an audience share of 10 per cent within six months of the determination and notification by the to grant the competent state media authority broadcasting time for independent third parties in accordance with Section 31.If a company achieves an audience share of 20 percent on average over a year with programs attributable to it, without one of the full programs or special-interest programs with a focus on information reaching an audience share of 10 percent, the obligation under sentence 1 also applies to the organizer of the program attributable to the company the highest audience share. If the organizer does not take the necessary measures, the relevant state media authority must revoke the approval after the KEK has determined it. Paragraph 4 sentence 5 applies accordingly. [...]Source: die-medienanstalten.de / State Treaty for Broadcasting and Telemedia

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Once this threshold has been reached, no further programs may be permitted for the respective broadcaster. Various measures are also being taken to limit the organiser's power of opinion. This includes, for example, separating from participation in individual programs. Or he introduces measures to ensure diversity, e.g. B. Broadcasting times for independent third-party broadcasters or a program advisory board.

With this regulation, the legislature intervenes more strongly in the market on the television market than is the case on other markets. This shows how seriously the constitutional concern about a possibly prevailing power of opinion is taken: When weighed up, the political goal of preventing excessive concentration in the television sector weighs so heavily that other principles, such as the rules of the free market, are restricted.

The commission for determining the concentration in the media sector (KEK) is responsible for the implementation of the relevant regulations. On its website, it provides information on all approved television programs, the respective organizers and the audience shares that the individual programs and station groups achieved in the past year. The two largest private broadcaster groups in Germany have each achieved audience shares between 18 and 25% in recent years: It is the RTL Group with the programs RTL, VOX, RTL II, Super RTL, RTL Nitro and n-tv as well as the ProSiebenSat.1 Media AG with the programs Sat.1, ProSieben, kabel eins, sixx, Sat.1 Gold and ProSieben MAXX. [3]

The inclusion of other media in television-related concentration control

Even if the current model to prevent prevailing power of opinion starts with television, there is still a regulation in the Interstate Broadcasting Treaty that extends the view to other media as well.

Section 26 (2) of the RStV stipulates that the prevailing power of opinion is presumed even if a company:
  1. reached an audience share of 25% on the television market and
  2. in addition "has a dominant position in a media-related related market or an overall assessment of its activities on television and in media-related related markets shows that the influence of opinion achieved thereby corresponds to that of a company with a 30 percent audience share on television."
This takes up the trend that has been observed for a long time that media companies are increasingly becoming cross-media. Accordingly, concentration tendencies can no longer only:
  1. horizontal - So between providers of the same level of exploitation, z. B. television broadcasters - but also
  2. vertical - So between providers of different levels of exploitation, z. B. Producers and program organizers perform.
While the problem is recognized and named by name in the Interstate Broadcasting Treaty, the implementation of such a regulation proves to be a challenge. How should one judge whether the influence of a provider, for example in the daily newspapers, is as great as it corresponds to a viewer share of 5% in the television sector? This issue received considerable attention in 2006. At that time, the KEK made the decision to reject the proposed takeover of the television group ProSiebenSat.1 Media AG by Axel Springer AG. The KEK pointed out that the power of opinion of this company in relevant other markets (e.g. daily newspapers, program guides, consumer magazines, advertising papers, online offers and radio programs) is so great that, taken together, a predominant power of opinion must be assumed [4].

That the KEK came to this decision was largely understood at the time: A takeover of one of the two important German television companies by the largest German newspaper publisher would have been widely perceived as a signal that media concentration control was not possible or not wanted. From a legal perspective, however - according to the Federal Administrative Court in its decision on the later legal dispute - the KEK had strayed too far from the presumption rules of § 26 RStV. Section 26 (2) of the RStV contains so-called standard examples, in which a prevailing power of opinion is assumed. When making the decision, the KEK had fallen well below these legal thresholds and still added audience shares from the press area to the media-relevant related markets. The Federal Administrative Court then decided that the decision could not be legally upheld because the legislature was constitutionally obliged to prevent the prevailing power of opinion on television and therefore an expanded interpretation was not necessary. Such an interpretation would turn the television-centered control of opinion power into a general control of opinion power [5].

In terms of communication science, criticism arose at the point how the KEK came to this decision: It had set certain values ​​for the other media markets, which indicate the weight these media have - in relation to television - in forming opinions. This weighting was and is controversial because there are hardly any scientifically sound comparisons with regard to the actual contribution that various types of media make to opinion-forming.

So far, the special attention paid to television compared to other types of media has been based on three criteria, which have been largely shaped by the case law of the Federal Constitutional Court:
  1. Broad impact: The term broad impact refers to the range that the medium achieves in society, as well as the temporal and spatial availability of the medium.
  2. Topicality: The term actuality refers to the fact that the medium of television is strongly characterized by current information and the live character of the reporting.
  3. Suggestive power: The term suggestive power is equated with a combination of moving images and sound, through which the presented content can be conveyed particularly vividly, vividly and authentically.
In earlier judgments, the Constitutional Court had mainly referred to the "special situation of broadcasting", which on the one hand saw the high financial cost of operating broadcasting as a reason. On the other hand, the scarcity of analog frequencies was decisive for the argument that broadcasting was a public task [6].

Above all, the latter argument has been weakened significantly with increasing digitization. The Federal Constitutional Court used the three above-mentioned criteria ascribed to television in its decision on fees to justify the need for regulation of broadcasting [7]. The terms broad impact, topicality and suggestive power are vague terms that the Constitutional Court uses to characterize the special effect of broadcasting. This explicitly builds a bridge to empirical usage and impact research, which has to answer the question of what effects media (in particular: television) have and how an indicator for calculating cross-media (cross-media) power of opinion can be developed.

Creation of an indicator for calculating cross-media power of opinion

The importance of the various media in people's everyday lives is currently subject to major changes. The rapid expansion of the Internet and the great success of new platforms and intermediaries such as Facebook, YouTube, Twitter or Google Search call the established roles into question [8]. The discussions about how similar the online offer of a television company is or may be to the press shed light on the difficulty of clearly differentiating between the media [9]. In any case, it is no longer so easy to justify that the criteria of broad impact, topicality and suggestive power can be ascribed to television alone. In addition, these criteria are not sufficient to determine in a comprehensible manner the relevance of the various other media for forming opinions.

In this situation, attempts have been made in recent years with the media diversity monitor of the state media authorities to determine a cross-media indicator for the influence of opinion. This is made up of two initial values, which are determined with the help of population-representative surveys:
  1. the share of the media type in informative media usage and
  2. the subjective importance of the genre for information about current events in Germany and the world.
The so-called "opinion-forming weight" is calculated from these two values. According to this, television achieved the highest weight in the second half of 2015 with 36.3%; this is followed by the Internet, daily newspapers, radio and magazines (see Table 1). A trend comparison since 2009 shows that the weight of linear television is falling, while the weight of online media is increasing continuously. This indicator provides an empirically based estimate for calculating the cross-media power of opinion of a company by weighting the market share on the various media markets with the importance of the medium for forming opinions. For the second half of 2015, the media authorities updated the overview of the media companies with the greatest weighting of opinion (see Table 2). This indicator represents a pragmatic answer to the outlined challenge for media policy that the determination of dominant power of opinion can no longer be determined solely from television. This approach can be extremely helpful for practical use in making specific decisions about mergers between media companies. However, it inevitably remains on a very abstract level: The various forms of media influence on opinion formation are condensed into a single indicator. It is therefore worthwhile to take a more differentiated look at the various forms of possible influence of the media on opinion-forming.