Dr. Conrad, it was announced yesterday that the Ministry of the Interior has banned the magazine “Compact” and the companies that publish it. Is it that easy to ban a medium in Germany?
Christian Conrad: Actually yes. Yesterday’s ban is based on the Association Act. Section 3 paragraph 1 of the Association Act (only) argues for a so-called banning order. Of course, numerous and strictly enforced legal requirements must be observed here, but in fact the banning authority – in this case the Federal Ministry of the Interior – issues this order. This means that a club is banned and its assets are confiscated, etc. The association can then only have the legality of the state’s actions checked afterwards – for political parties, for example, this is regulated differently; A possible ban there only comes at the end of a dispute at the constitutional court, which usually lasts for years.
But Compact is not an association. Does the association law still apply here?
Conrad: Yes. Section 2 paragraph 1 of the Association Act stipulates: “An association within the meaning of this Act is any association, regardless of its legal form, in which a majority of natural or legal persons have voluntarily united for a common purpose for a long period of time and have submitted to an organised decision-making process.” This also includes companies – such as COMPACT-Magazin GmbH here, for example – is also confirmed by the regulations of Section 17 of the Association Act.
Does this mean that all media companies are threatened with such a ban?
Conrad: In fact, yes, if the legal requirements are met. “Axel Springer Deutschland GmbH”, “taz Verlags und Vertriebs GmbH” and “Süddeutsche Zeitung GmbH” were theoretically also subject to association law. So-called ‘media bans’ are therefore rightly viewed very critically for legal reasons.
Doesn’t freedom of the press apply here? Article 5 of the Basic Law?
Conrad: But. Press freedom is directly affected here. In my opinion, the rules of the Association Act do not ‘fit’ into the area of the press that is so important and sensitive to fundamental rights – just think of editorial secrecy! If the state breaks into editorial offices and takes letters or e-mails from informants, this affects the core area of press freedom. Moreover, there is – very abstractly speaking – a huge risk of abuse if the state wants to prevent opinions and positions that it does not like, especially since the subsequent judicial review process can drag on for years. I therefore advocate a new regulation for media companies analogous to the requirements for the party ban procedure Article 21 of the Basic Law.
At ‘Compact’ it remains ‘exciting to see whether the BMI has taken into account all constitutional requirements’
Can the state in this way simply combat opinions it dislikes?
Conrad: No. For example, the Federal Constitutional Court ruled in a decision of 13 July 2018 (1 BvR 1474/12, 1 BvR 670/13 and 1 BvR 57/14) stated that a ban on association would be incompatible with the requirements of the Constitution if it were merely a means of prohibiting expressions of opinion or publications which in themselves enjoy the protection of freedom of the press (paragraph 93). The decision further states (paragraph 108/114):
“Article 9 Section 2 of the Basic Law is – whereby Article 5 is also taken into account Article 3 paragraph 3 sentence 1 Basic Law – no prohibition of ideology or beliefs and is neither aimed at internal attitudes nor at particular political convictions. Even the dissemination of anti-constitutional ideas or particular political opinions does not in itself exceed the limits of free political debate.
Just as the Basic Law fundamentally guarantees freedom of expression, even to the enemies of freedom, by relying on the power of free public debate, with freedom of association it fundamentally relies on free social association and the power of civic engagement in free and open political discourse. In order to justify a ban on association, it is therefore crucial whether the association as such adopts a combative and aggressive external stance towards the elementary principles of the Constitution. (…)
Therefore, a ban on association cannot in principle be based solely on expressions of opinion that are constitutionally protected by Article 5, paragraph 1 of the Basic Law, nor on other forms of conduct that enjoy thorough protection of fundamental rights. A ban on association, even if imposed because of an orientation against the constitutional order, may not be unilaterally directed against certain political opinions, because this is contrary to the prohibition of discrimination in Article 3 Paragraph 3 Sentence 1 of the Basic Law violated”
Furthermore, the decision contains the relevant sentence: “A ban on association may not have the effect of prohibiting what civil liberties otherwise permit.” It therefore remains to be seen whether the BMI has taken all these strict constitutional requirements into account.
Conrad: “I have strong doubts whether Karlsruhe will comply with this ban”
What happens now legally? What possibilities does a medium that is prohibited under the law of association have to defend itself against the order? Can the Federal Constitutional Court be involved immediately or must another legal process be followed first?
Conrad: The Federal Administrative Court is responsible for a lawsuit against the ban order in first and last instance. Now that the BMI has ordered the so-called “immediate execution” of the ban order, a procedure for interim legal protection can also be initiated against it. An adverse decision of the Federal Administrative Court could then be appealed to the Federal Constitutional Court and there could be a violation of fundamental rights.
The Federal Constitutional Court has explicitly stressed the importance of freedom of the press in many rulings. In your opinion, will Karlsruhe reverse the ban?
Of course, it is difficult to make a prognosis if, like us, you do not know the files. However, after first looking at the ban order and the press release from the Federal Ministry of the Interior, I have strong doubts as to whether Karlsruhe will comply with this ban order. The Ministry of the Interior must demonstrate in the files it submits that it has met the strict legal requirements mentioned. There are also further legal questions about the applicability of the Association Act to media companies, the ban on censorship or the jurisdiction of the federal government, on which no ruling has yet been made by the Federal Constitutional Court.
And finally, the question arises whether milder means could have existed here. In the above-mentioned ruling of July 2018, the Federal Constitutional Court stated that, in the context of proportionality, it must always be examined whether less drastic interventions in press freedom, such as a ban on certain activities of the publisher or measures against individual members, could be sufficient. Specific mention was made of possible bans on events, location- and event-related bans or statements and bans on meetings. The courts will now probably clarify whether and how the Ministry of the Interior has examined all of this.
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Dr. Christian Koenraad is a partner at the media law firm HÖCKER in Cologne. There he heads the department “public law right of expression” and regularly represents clients before the civil, administrative and constitutional courts.