Federal Administrative Court demands review of program diversity

The dispute over the broadcasting fee is reaching a new dimension. A woman from Bavaria is refusing to pay the fee, arguing that public broadcasting (ÖRR) is failing to fulfill its statutory mandate.

Now the Federal Administrative Court has ruled that program diversity may be reviewed in terms of content for the first time.

The ruling could have far-reaching consequences for ARD, ZDF and Deutschlandradio. It affects all media and programs of the providers.

Background of the case

The plaintiff from Bavaria refuses to pay the broadcasting fee for the period October 2021 to March 2022. Her allegation: Public broadcasting does not offer a real Diversity of opinionbut promotes one-sided reporting and thus state-supported power of opinion.

Instead of a pluralistic media landscape, she sees a “simplicity of opinion” that contradicts the legal mandate.

Decisions of the lower courts

Both the Munich Administrative Court and the Bavarian Administrative Court initially dismissed the lawsuit. Their reasoning was that the obligation to pay contributions did not depend on the subjective evaluation of the program.

Anyone who has the opportunity to receive public broadcasting must pay – regardless of whether they use the program or consider it to be balanced.

Judgment of the Federal Administrative Court

The Federal Administrative Court (BVerwG) in Leipzig overturned this decision today and referred the case back to the lower court. For the first time, a court will examine whether public broadcasting is truly fulfilling its statutory mandate for balance and diversity.

This brings the quality of the program's content into focus—a step that has so far been avoided by administrative courts.

High hurdles for unconstitutionality

However, the Federal Administrative Court emphasized that the broadcasting fee would only be unconstitutional if "gross and regular deficits" in program diversity existed over a prolonged period. These would have to represent a clear disproportion between the fee burden and the program quality.

The court specifies two years as the minimum period. Furthermore, scientific analyses would be necessary to objectively substantiate such deficiencies. The requirements therefore remain high, as freedom of broadcasting is particularly protected under the constitution.

Outlook on the further proceedings

The Bavarian Administrative Court must now examine whether the public broadcaster legally required diversity actually reflects this. Should it reach a contrary conclusion, the case could end up before the Federal Constitutional Court again.

It had already decided in 2018 that the broadcasting fee is fundamentally constitutional, provided that a broad and diverse range of programs is guaranteed.

Conclusion

The current dispute could set a precedent. For the first time, not only the obligation to pay fees but also the quality of public broadcasting's content is being legally scrutinized.

Whether this will have real consequences for the public broadcasting service and the broadcasting fee now depends on the assessment of the Bavarian judges…

Sierks Media / © Photo: Christian Dubovan, Unsplash