Violent protests in the Islamic world stand face to face with the West’s professed belief in the freedom of the press. But what is press freedom? What are its limits? Daphne Antachopoulos considers the question in the German context.
German Federal Constutional Court about to pronounce judgment
“Every person has the right to express and to disseminate his opinion freely in speech, writing or as image… There will be no censorship.” That is what Article 5 of the German Constitution says regarding the freedom of opinion, of the press and of broadcasting. Article 5 also protects the freedom of art, of research and of teaching.
Freedom of opinion is a human right and as such guaranteed to every person. The term ‘opinion’ is to be understood in the broadest sense: it includes every kind of view, evaluation or position. It must be possible to disseminate one’s opinion in all possible forms and ways, whether as speech or by radio, television, newspaper, Internet, photography or painting.
Freedom of the press is a special form of the freedom of opinion. It guarantees that all kinds of opinion can be disseminated independently and freely. This protects not just views and opinions but also facts or even pure entertainment. It is irrespective of contents as well as of quality – it does not depend on whether the information is valuable and intellectually worthwhile or worthless. Editorial departments doing their research and then helping to spread the information are equally protected from intervention by the state. Article 5 also includes the freedom of information: everyone has the right to gather information from all possible sources without restriction.
Censorship is forbidden. The state may not intervene in the program of a radio or a TV station, or in the contents of a newspaper, or in the spread of information in general – the state is not allowed to hinder such a process or set conditions – a restriction which is clearly aimed at pre-censorship. But control or prohibition of already published material through censorship is equally forbidden.
Intervention by the state is only possible when the limits of the fundamental right of freedom of opinion or of the press have been crossed. These limits are incorporated in general laws such as the protection of children and young persons or the criminal law. For example, Paragraph 166 of the German Criminal Code deals with abuse or insult of religious or ideological confessions. If a person derides or disparages a religious community or an ideological association in such a manner as to cause a public breach of peace, then such an act is punishable by law. The Oberlandesgericht or higher regional court in Nuremberg gave a judgment in 1998 in which the court considered the representation of a pig on a cross to be such an act. A record company had had plans of printing this picture on T-shirts for a punk band for the Internet. But such cases are rare.
And even if the state has reason to believe that some law will be broken – for example that a religious community could feel mocked or abused through some publication – it still does not have the power to intervene and forbid such publication. The order will have to come from an independent court.
Freedom of the press made its first official appearance in Germany in 1919, when it was included in the Weimar constitution. The Nazi’s nearly got rid of press freedom: first the socialist and communist papers got their prohibition orders, in 1933, simultaneously all fundamental rights were suspended. Finally all journalists and publishers were put under the direct supervision of the Reich propaganda minister – none other than Goebbels.
Under the circumstances, it is understandable that freedom of the press has such significance in Germany. It is meant to serve as the fourth power along with the executive, the legislative and the judiciary – as a kind of corrective for all three, hence by definition independent and free.
As the Bundesverfassungsgericht or Federal Constitutional Court has declared: the right to freedom of expression is “in a certain sense the basis for every other kind of freedom”.