Federal Constitutional Court on the admissibility of broadcasting election advertising: No obligation for ZDF to air an NPD spot during the 2019 European elections
Case law concerning the broadcasting of election commercials by political parties in the media repeatedly raises the question of the extent to which media institutions are obliged to broadcast content whose compatibility with constitutionally protected interests is doubtful. Particularly when it comes to election advertising by extremist parties, the focus is on the tension between freedom of expression, the principle of equal treatment, and the protection of other legal interests. The decision of the Federal Constitutional Court of April 29, 2019 (Ref. 1 BvQ 36/19) offers an insightful look at the constitutional standards to be applied when assessing such cases.
Background and course of proceedings
In connection with the 2019 European elections, the National Democratic Party of Germany (NPD) petitioned Zweites Deutsches Fernsehen (ZDF) to be obliged to broadcast an election commercial. After the responsible ZDF broadcasting council decided against broadcasting the spot, the party filed an urgent application with the Federal Constitutional Court. The rejection of this application serves as a prime example of the ongoing legal limits of party-political advertising on public broadcasting.
ZDF essentially justified its refusal by stating that content of the disputed election spot could fulfill the criminal offense of incitement to hatred. Prior to this, administrative court instances such as the Administrative Court and the Higher Administrative Court had already ruled that ZDF was not required to air the spot.
Constitutional assessment of the grounds for the decision
Freedom of expression and the principle of equal treatment
As a basic rule, the Basic Law grants political parties a right to equal treatment in terms of broadcasting election commercials on public broadcasting within the framework of equal opportunities (Art. 5 (1) and Art. 21 GG). However, the Federal Constitutional Court emphasized that this right does not apply without limitation: If the content of an election commercial fulfills the criminal offense of incitement to hatred, broadcasting is not constitutionally required.
Protection of other constitutional values
Here, the Court prioritized the protection of human dignity and public order over the party’s right to political expression. Unlawful election advertising that is likely to disturb public peace or constitutes a criminal offense within the meaning of section 130 of the Criminal Code (incitement to hatred) can be refused by public broadcasting.
Against this background, it was the responsibility of the Federal Constitutional Court to decide, within the framework of weighing the consequences, whether the public interest in protection from criminal statements outweighs the interest of the party in free election advertising. The Court made it clear that if there are reasonable doubts regarding criminal liability, broadcasting should be refused as long as there are convincing indications of unconstitutional content.
Significance for the freedom of broadcasting
The present decision underscores the responsibility of public broadcasters not to disseminate criminal content and grants them, to this extent, a review and monitoring obligation. The duty to treat parties equally thus exists subject to the proviso that the content to be broadcast does not contravene constitutional limits.
Practical implications and significance for parties and broadcasters
The decision further clarifies the line of case law according to which the equal opportunity of parties in election campaigns should not lead to public broadcasting serving as a platform for criminal or incendiary content. For parties, this means an increased personal responsibility to strictly observe statutory and constitutional requirements when designing election campaign materials.
For broadcasting corporations, this judgment provides a clear delineation of their responsibilities: They are required to carefully examine whether content exceeds the boundaries of criminal law or other legal interests. Refusal to broadcast is then justified in individual cases if sufficient likelihood of criminal liability is established.
Sources and case law reference
The facts and legal assessments in this article are essentially based on the decision of the Federal Constitutional Court of April 29, 2019 (Ref. 1 BvQ 36/19). Further relevant legal references can be found in Art. 5 (1) GG, Art. 21 GG, and section 130 of the Criminal Code.
Conclusion
The Federal Constitutional Court’s decision on the 2019 European elections represents an important precedent regarding the handling of election advertising by extremist parties and the corresponding obligations of public broadcasters. It clarifies how the constitutional principles of freedom of expression, equal treatment, and the protection of other constitutionally protected legal interests can be reconciled.
If you have further questions regarding the assessment of the admissibility of political election advertising and the resulting legal issues, the Rechtsanwalt of MTR Legal are at your disposal.
