Term and Definition of “Public” in Law
The term “Public” (German: “öffentlich” or “die Öffentlichkeit”) is of central importance in various areas of law and designates circumstances, spaces, goods, or processes that are wholly or partially related to the general public. Legally, “Public” encompasses all matters that are outside private or individual spheres and are subject to collective, state, or communal regulations and interests. The precise legal meaning varies depending on the context, for example, in constitutional law, administrative law, copyright law, and data protection law.
Distinction from the Private
A fundamental legal distinction exists between “Public” (public) and “Private” (private). Public refers to everything that can no longer be attributed exclusively to individuals or specific groups and typically falls under state control, regulation, or general accessibility. The term is constitutive for numerous legal institutions that govern the relationship between the individual, society, and the state.
Public Law and “Public”
Public law regulates the legal relationships between sovereign authorities (state, agencies) and citizens, as well as between state institutions themselves. In connection with “Public,” the following areas are particularly relevant:
Public Interest and Common Good
The public interest is a fundamental criterion for state action and justifies interventions in individual legal positions. This includes measures for averting danger, the performance of public duties, and the protection of collective goods. Upholding the common good serves as a guiding principle for decisions in public administration.
Public Order and Safety
The terms “public order” and “public safety” are central components in the law of hazard prevention. They denote those legal interests protected by the state, whose maintenance and protection serve the public interest. Public safety includes the protection of the objective legal order, legal interests, and institutions of the state and the general public.
Public Institutions, Facilities, and Enterprises
Various organizations and companies are considered “public” by their function and legal form (e.g., public administration, public enterprises, public law corporations). They perform tasks for the benefit of the general public and are subject to special legal frameworks, for example, regarding transparency, control, and access.
Public Property and Public Goods
Public Objects
Public objects are assets owned by the state or other public-law entities and are intended for use by the general public. Public roads, squares, buildings, but also digital infrastructures can fall under this. The use and management of public objects are subject to specific statutory regulations.
Public Goods
Public goods are economically and legally characterized by the features of non-excludability and non-rivalry in consumption. Examples include air, street lighting, or general education. The provision and management of such goods is a central governmental task and is legally regulated in many respects.
“Public” in the Context of the Principle of Publicity and Freedom of Information
Principle of Publicity
The principle of publicity is found in numerous regulations, for example, in administrative or parliamentary law. It ensures transparency of state action and enables public oversight. This includes, for example, the requirement for parliamentary bodies to hold public sessions or access to court hearings (so-called public nature of the proceedings).
Freedom of Information and Access to Public Information
The right of access to public documents is enshrined by law in Germany and the EU at various levels. Freedom of information laws grant the right to obtain information from public bodies, with certain exceptions, such as for the protection of personal data or trade secrets.
“Public” in Copyright and Data Protection Law
“Public Domain” and Commons
In copyright law, the term “public domain” describes works whose protection period has expired or which are not subject to copyright protection from the outset. Such works are freely available to the general public.
Public Accessibility of Data and Data Protection
According to the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG), the publication of personal data (“publicly available information”) is legally restricted. Public accessibility of personal information requires a legal authorization, consent, or an overriding public interest.
Public Appearance and Freedom of Assembly Law
Freedom of Assembly and Public Expression of Opinion
The right of public assembly is constitutionally protected (e.g., Art. 8 GG). Public assemblies and demonstrations are a central form of societal expression and formation of will, but are subject to registration requirements and can be restricted under certain conditions.
Public Law Contracts and Public Tenders
Public Law Contracts
State institutions conclude public law contracts with private parties or amongst themselves according to special provisions (e.g., § 54 VwVfG). These differ significantly in form and effect from contracts under private law.
Public Procurement Law
Procurement procedures for public contracts are subject to legal regulations intended to ensure transparency, equal treatment, and competition. Public tenders ensure the proper and fair use of public funds.
Closing Remark
The term “Public” in law refers to all phenomena, goods, processes, and institutions in which the general public has an interest, which are subject to state control or serve the general benefit. The various legal contexts—from constitution and administration to copyright, data protection, and public procurement—reflect the complexity and central role that “Public” plays in the functioning of society and the rule of law.
Frequently Asked Questions
What legal framework applies to public events?
Public events in Germany are subject to various legal regulations at federal, state, and municipal levels. As the organizer, you must observe numerous rules, including public order law, assembly law, as well as tax and liability provisions. First, it must be clarified whether a permit is required for the planned event. This primarily concerns events in public spaces, e.g., on streets, squares, or parks. The public order law of the municipalities governs the details, such as curfew hours, volume limits, and waste disposal. Depending on the type of event, other areas of law may also apply, such as the Youth Protection Act for concerts or restaurant law for catering. Data protection law is also relevant if personal data are collected or processed at the public event. Overall, organizers must comply with a wide variety of laws, regulations, and official requirements to ensure the event is legally compliant.
Who is liable for damages arising in the context of a public event?
Liability for damages at public events primarily rests with the organizer. The organizer bears the so-called duty to ensure safety and must ensure that no dangers arise for participants or third parties. If damage occurs—for example, due to improper stage construction, slippery floors, or inadequate safety measures—the organizer can be held liable for damages. Liability covers both personal injury and property damage. Usually, insurance must also be taken out, such as organizer’s liability insurance, which covers insured events for which the organizer is responsible. It is also essential to comply with local fire safety and security regulations; failure to do so can result in not only civil claims but also administrative consequences such as fines or a ban on the event.
What data protection aspects must be considered at public events?
According to the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG), there is an obligation at public events to ensure the protection of personal data. This particularly concerns the collection, processing, and storage of participants’ names, contact details, or images. During registration, for example, information about the use and storage of data must be provided in a privacy policy. If photos or videos are taken, the Art Copyright Act (KUG) must also be considered, especially regarding the consent of persons depicted. Special attention must be paid when processing minors’ data and sensitive data (e.g., health data). Organizers must take appropriate technical and organizational measures to safeguard data security and, if necessary, appoint a data protection officer.
What permits must be obtained for public events?
The required permits depend on the type and scope of the event and its location. Typically, an event notification or a special use permit from the relevant municipality is necessary if public roads or squares are to be used. For large gatherings, a permit under the Assembly Act may also be required. If music is played or performed, registration with GEMA is necessary to comply with copyright law. If food and beverages are offered, the regulations of restaurant law apply, possibly requiring serving and food permits. Depending on the federal state and type of event, further permits may be required, for example, for temporary structures (e.g., stages, stands, tents) or fire safety requirements.
What restrictions apply under copyright law for public performances?
Copyright provisions must be strictly observed during public performances—such as music, films, or plays. This means that, in principle, the consent of the rights holder must be obtained for every public performance that does not occur solely in private or family circles. In practice, this mainly concerns music pieces and films: Here, registration and licensing via collecting societies such as GEMA or VG Wort are required. The use of photos, texts, or works of art at an event is also subject to copyright law. Infringements may lead to costly cease-and-desist orders and damages claims. It is therefore advisable to carefully check the rights of all works used and to obtain the necessary licenses in advance.
What liability considerations must be taken into account when minors participate in public events?
When minors participate in public events, the organizer’s duty of care increases. According to the German Civil Code (BGB), it must be checked whether the event is permitted for the relevant age group (see in particular the Youth Protection Act). For age-restricted events, entrance checks must be conducted, and, in some cases, consents or declarations from legal guardians may be required. For activities involving increased risk (e.g., sporting events or hands-on activities), enhanced safety measures and supervision duties must be observed. If damage occurs due to inadequate supervision, organizers can be held liable to a greater extent, especially in cases of neglecting inspection and duty-of-care obligations.
