Mikhail A. Korotkevich

The communication rights enshrined in Part 1 of Article 5 of the Basic Law of the Federal Republic of Germany — freedom of expression, freedom of information, press, broadcasting, and cinema (Kommunikationsgrundrechte) are of constitutive importance for German democracy, since the process of forming of public opinion, which is important for the functioning of democratic institutions, depends on the level of their guarantee. At the same time, due to the special persuasiveness of the audiovisual form of information presentation, broadcasting is the most significant means of influence. Public service broadcasting (öffentlich-rechtlicher Rundfunk) is central to the German broadcasting system, while the role of private broadcasters is secondary. The decisive importance of public broadcasting in shaping the political opinion of German citizens presupposes the existence of sufficient and effective constitutional and legal guarantees that exclude the instrumentalization of this institution by the state, industry, and other influential public groups. The article, taking into account the historical context and using examples from the legislation and practice of the Federal Constitutional Court of Germany, analyzes these guarantees, and also describes the basic constitutional and legal principles of the functioning of the broadcasting system in Germany. As a conclusion, a set of the basic essential characteristics of the German model of public broadcasting is fixed, which might be used for further critical consideration of this institution.

The article critically analyzes the current reform of public broadcasting (öffentlich-rechtlicher Rundfunk) in Germany, which began in 2020 with the adoption of Interstate Media Treaty and reached its maximum intensity in 2024, when the Expert Council of the Broadcasting Commission of federal states proposed the first draft of changes providing for a systemic restructuring of the institute. Focusing on the proposals for the transformation of public broadcasting in 2024, they are being evaluated for compliance with the constitutional and legal guarantees of the German communication order, which the Federal Constitutional Court of Germany throughout the post-war period deduced from the communication rights enshrined in article 5 of the Basic Law of the Federal Republic of Germany. To achieve this, the project of the contemporary reform is compared with the current model of public broadcasting, formed by the positions of the court in constitutionalized ordinary legislation, and constitutional-legal consequences of its implementation are forecasted, incorporating socio-political context. Existing issues within German public broadcasting are not excluded from consideration. As a result of the analysis, it is stated that in the case of the implementation of this reform, the postwar communication order of Germany, established by the Western Allies and legalized in the constitution, constitutional justice positions and legislation, will undergo a serious transformation through the growth of three main trends: centralization of regulation and management of public broadcasting; depoliticization and de-parliamentarization of public broadcasting; the neutralization of constitutional and legal guarantees of the independence of public broadcasting, primarily related to financing and its internal organization. It is suggested that the proposed reform is potentially incompatible with the Basic Law of the Federal Republic of Germany.