Journal of Information, Law and Technology

Prospects of Guaranteeing Free Public Communication
Findings of an Interdisciplinary Study on the Necessity of 
Non-commercial Services on the Basis of German Constitutional Law
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Wolfgang Schulz
Thorsten Held
Hans-Bredow-Institute, Hamburg

This is a commentary published on: 16 August 2002 

Citation: Schulz and Held, ‘Prospects of Guaranteeing Free Public Communication’, The Journal of Information, Law and Technology (JILT) 2002 (2) <http://elj.warwick.ac.uk/jilt/02-2/schulz.html>

1. Introduction
This article deals with the legal requirements essential for guaranteeing free public communication given the technically driven changes in the media: Does convergence lead to a variety of services and will this mean that there will be little need for non-commercial services (mainly) provided by public broadcasters any more? Or are there, conversely, reasons to extend the scope of public broadcasters even further into the online sphere or to find new forms of non-commercial services?

A study conducted by the Hans-Bredow-Institute, Hamburg, and the ‘Institut für Rundfunkökonomie’, Cologne, on behalf of the ARD (Arbeitsgemeinschaft der öffentlich-rechtlichen Rundfunkanstalten der Bundesrepublik Deutschland, German Association of Public Broadcasters) seeks answers to these questions. It makes use of a multidisciplinary approach. However, this brief article focuses on the legal side of the problem. 

It deals with the question of whether the commercial supply of online services is adequate to fulfil the requirements set by the German constitution, or whether special regulation or promotion of alternative approaches of content production, e.g. non-commercial services, is needed. It is the fact that new services have been developed which have been significant for society (e.g. webcasting, internet portals, search engines, newsgroups) that gave rise to this study.

Although the approach of the study focuses on German constitutional law, the legal analysis is based on empirical and economical research, and thus the study may be interesting for the future of Media regulation in other countries, as well. 
 
2. Constitutional Requirements
In German broadcasting, it is a constitutional obligation for the law-makers to guarantee freedom of the ‘process of forming public and individual opinion’ (‘freie öffentliche und individuelle Meinungsbildung’). In order to meet this obligation, not only special rules for private broadcasters have been enacted, but also a concept called ‘structural diversity’ has been enforced. This concept means combining the advantages of different ways of producing information goods. The establishing of public broadcasters can be seen as part of such a concept of ensuring structural diversity.

The basis of the study is an analysis of the constitutional framework. According to the federal constitutional court the freedom and openness of this process has to be ensured by the law-maker wherever risks emerge that the constitutional objectives are not being met. However, one has to take into account that the changes in the media have led to a shift among the risks.
3. Changes Have Led to Different Types of Services in the Media
The increase in new types of media will probably not lead to the total replacement of the old ones at all, but a new arrangement of services and how these services are used will take place. In the study we have collected information coming from communication science to describe and - as far as possible - forecast the change in public communication brought mainly by internet services. There is no reason to believe that traditional broadcasting will lose its role as a leading medium offering special functions to the users. Nevertheless, one can already identify fields, where special online services have replaced broadcasting services in such a way that they have taken over functions which used to be primarily fulfilled by traditional broadcasting. We believe that a concept which distinguishes between the different types of online-services is the only way of describing these phenomena adequately.
3.1 The Reversing of the Perspective 
When talking about internet communication one notices that the perspective has to be turned upside down. In traditional broadcasting the prevention of abuse of power of a broadcaster, and the ensuring of diversity were necessary to fulfil the constitutional requirements mentioned above. The perspective pointed in the direction of the service provider: The broadcaster was considered to be the one who triggered the risks. In contrast there is a proverbial variety of content to be found in the Internet. However, one can not assume that all of these form part of the ‘public sphere’. To recognise this risk one has to switch over to a user-perspective. The question therefore is not, who has access to this ‘public sphere’ as a ‘speaker’ and what the conditions are. In contrast there is the question of how these ‘public spheres’ can be found by the users. 
3.2 The Role of Journalistic and Non-journalistic Services
In our observation it is still not clear whether the process of journalistic communication will remain a distinguishable and important part of public communication, and furthermore, which role different media services will play in this field. When examining this question we refer once more to the German theoretical approach of the ‘public sphere’. Information can be titled ‘public’ whenever it is assumed in public communication that this information is known universally. Thus, traditional mass media play a major role in constituting this ‘public sphere’. Due to the fragmentation of audiences with traditional media, the keystones of this concept are being questioned. German communication scientists now speak of ‘public’ in the plural. In view of the different online services, it is getting even more complicated to identify this ‘public sphere’. 

However, for the purposes of our study we have assumed that journalistic communication is still of major importance to the process of public communication, and that some online services are taking part in journalistic communication. 

Besides that we have taken into account that some media services play a fundamental role for the usage of other services (so-called bottle necks in the process of communication). For these indirect effects of media services there can be found no equivalent in traditional media areas. Of course, portals and search engines come to mind when considering indirect effects of media services.
4. Reasons for the Necessity of Specific Regulation
In the German constitutional debate, two grounds for the necessity of specific regulation for broadcasting can be distinguished.

1) The importance of these services for the process of public communications; and

2) the risk of market failures.

Firstly, according to the federal constitutional court, broadcasting can be seen as a medium of major importance for public communications. While in former times the special situation in the broadcasting sector (dependence on scarce frequencies, high costs) were seen as the reason for a specific regulation, the court now has declared that special features of the medium - i.e; broadcasting being suggestive, current and with spread-effect – lead to the need of regulation. In the study we have differentiated various criteria to measure this 
‘importance’ for public communications to be operationable. One cluster of criteria characterises mediums as being ‘journalistic’, and thus – in a traditional view – playing a special role in setting up the ‘public sphere’.

Secondly, market failures are seen as a valid reason for special regulation. The theory of market failures exposes different types of failures, such as asymmetric information and so called ‘externalities’ (the after-effects which have not taken into account by seller or buyer). Information economies have taught us that information goods tend to lead to such kinds of market failures, but however, one can differentiate between the different media services and the degrees of market failures. 

A synopsis of the findings of both of these parts of the study relating to the two grounds of special regulation leads to the conclusion that traditional media services like television programs still show the greatest necessity for regulation to fulfil the constitutional requirements. However, new media services as web-tv - which according to our definition can be seen as traditional broadcasting, but transmitted with a protocol that enables interactivity and switching between programs in a computer environment - is nearly of the same importance as traditional broadcasting, provided that the audiences of these services have almost the same size. The above mentioned portals and search-engines rank relatively high on this scale, too.
5. Ways of Compensating for Market Failures and Conclusions 
Of course, the solution for these problems cannot be found in transposing the broadcasting regulation to internet services. However, we believe that the concept of structural diversity has to be applied to internet services where necessary. Of course that does not lead to a ‘dual system’, but to different kinds of organisations offering internet services while following different methods of production. With the network the opportunity is given to combine different approaches of content production.

Ways of compensating for the above-mentioned market failures have been examined more closely in this survey: Straightening the role of non-commercial actors like foundations, widening the tasks of public broadcasters and creating incentives for commercial companies to reduce the risk of market failures (for example the labelling of search engines that reveal their search parameters).

The study concludes that the German Lawmakers are constitutionally required to evaluate the legal framework considering the changing media environment. Solutions have to be found regarding the increasing variety of types of services emerging in the process of convergence. However, to base legal obligations exclusively on the unique role of broadcasting is now empirically less founded then it was in the last century – for other countries as well as for Germany. 

Reference: Wolfgang Schulz/Thorsten Held / Manfred Kops, Perspektiven der Gewährleistung freier öffentlicher Kommunikation. Ein interdisziplinärer Versuch unter Berücksichtigung der gesellschaftlichen Bedeutsamkeit und Marktfähigkeit neuer Kommunikationsdienste, Nomos Verlagsgesellschaft, Baden-Baden 2002 
See <http://www.hans-bredow-institut.de> for further information.