Die öffentlich-rechtlichen Rundfunkanstalten bieten Rundfunk und Telemedien an

• Published in: Archiv des öffentlichen Rechts 2009-06, Vol.134 (2), p.240-267
• Main Author: BADURA, PETER
• Format: Article
• Language: ger
• Subjects: ABHANDLUNGEN
• ISSN: 0003-8911; 1868-6796

The programme and the telemedia of the public broadcasting enterprises must find their position in the coherent framework and regulated competition of "electronic information and communication services" which recent legislation tries to establish. The legislative undertaking, realized on the base of federal treaties, must comply with the protection and the objective directive of the constitutional freedom of broadcasting (art. 5 (1) (ii) GG). The preceding standards of the freedom to provide services and of the rules on competition, laid down in the European Community Law, esp. the limitation of aids granted by states, must be regarded. In this respect, the national legislation has to reckon the special role of the public broadcasting enterprises as a service of general economic interest (art. 16, 86 (2) TEC) which the Protocol of Amsterdam explicitly acknowledges, just for the financing of the programme and the telemedia of public broadcasting enterprises. The adequate confining, clear definition, and precise delimitation of the "mandate" of the public broadcasting function and operation by law, with respect for the publicistic and programme shaping autonomy of the broadcasting enterprises, is of strategic importance under constitutional and community law. By this normative formulation, the Public Value of the programme and the telemedia which is subject to special scrutiny gains a legal and practical scale and criterion. Equally the broadcasting enterprises, the private competitors and the press get legal certainty and certainty of enterprising planning. Telemedia of the public broadcasting enterprises, esp. the internet services, are covered by the constitutional freedom of broadcasting and may – also under community law – be financed by the means of the public broadcasting allowances, of course only insofar as they comply with the mandate of the public broadcasting, circumscribed by law in the limits of the constitutional guarantee of autonome existence and development ("Bestands- und Entwicklungsgarantie"), and insofar as they follow the functional guarantee in the sense of the Protocol of Amsterdam. The public mandate of the public law broadcasting enterprises can, due to the digital convergence of the audiovisual media and to the developing user attitudes of the audience, only be fulfilled in accordance with the attributed common weal function, if the law concedes telemedia offers and services to the public enterprises which are related to their pro