The The Federal Constitutional Court ruled on 21 September 2024 under the reference number 1 BvQ 57/24 decided that the public broadcaster rbb does not have to report the election results of the Animal Protection Party in the Brandenburg election.
The applicant, as a public broadcaster, is appealing against the Higher Administrative Court’s issuance of an interim injunction requiring it, under certain conditions, to show election results of the Mensch Umwelt Tierschutz (Animal Protection Party) party in its state television program in its presentations of the results of the state elections to be held in Brandenburg on September 22, 2024.
The Brandenburg regional association of the Animal Protection Party applied to the Berlin Administrative Court on August 28, 2024 for an interim injunction. The injunction was intended to oblige the applicant to show the applicant’s (expected) election results in all presentations of the results of the Brandenburg state election in its state television program on September 22 and 23, 2024, provided that it achieves at least two percent according to the forecast or projection presented in each case or the provisional official final result and thus no more than ten state lists in total have to be shown separately.
In support of its decision, the Animal Protection Party referred, among other things, to the equal opportunities for parties outside of election campaigns. The mobilization of new members and donations is constitutionally protected, while a threshold clause serves only to ensure the functionality of parliament. The state is obliged to actively offset the negative effect of the threshold clause on small parties. Broadcasters are obliged to take important opinions into account in their reporting. Parties that did not pass the threshold clause are also important. Post-election reporting is likely to influence the parties’ future chances. The applicant cannot generally refer to his broadcasting freedom to keep open the possibility of a short-term adjustment of the editorial concept. An adjustment based on the first projections indicates that the editorial approach is dependent on the result, which cannot be reconciled with the Animal Protection Party’s claim to equal opportunities or its claim to non-arbitrary decisions. An interference with the applicant’s journalistic freedom does not permanently curtail this. In any case, there is significantly less scope for creativity when presenting forecasts and projections.
If the requested interim order were not issued and a constitutional complaint in the main proceedings were to prove justified, the applicant would have to adapt his editorial concept for reporting on the (expected) election result on the basis of the effects of the contested decision. He would then have to implement this in the broadcasts. In doing so, he would have to ensure that (expected) election results of at least two percent are taken into account in all presentations of results. They would only have to be disregarded if more than ten state lists were to be shown separately.
This requirement for the applicant’s editorial concept may foreseeably lead to changes in the broadcast schedule in that a broader graphic and explanatory presentation may be required. This may take more time than under the previous editorial concept due to the display of more extensive graphics and the accompanying explanatory moderation. In turn, this reduced broadcast time for other planned focuses and content of the broadcasts. It must be taken into account that the limit of at least two percent set by the Higher Administrative Court of up to ten results to be shown separately may well be accompanied by noticeable shifts in the presentation of results and may turn out to be significantly more extensive than planned. The contested decision therefore has more far-reaching effects in the present individual case from the point of view of equal treatment of the parties, although the actual extent of the shifts cannot naturally be limited in advance due to the uncertainty about (expected) election results.
The disadvantages for the applicant continue to be of considerable importance, particularly in view of the nature of the interference resulting from the contested decision. It is an interference with editorial freedom in the creation and implementation of concepts for a broadcast. Freedom of broadcasting is, at its core, freedom of programming. It guarantees that broadcasters can decide how to fulfil a journalistic task free from external influence (cf. BVerfGE 87, 181 ; 90, 60 ; 97, 298 ; 114, 371 ). Freedom of programming means a prohibition not only of state influence, but of any external influence on the selection, content and design of programs (cf. BVerfGE 59, 231 ). Therefore, the basic right applies to all natural and legal persons who broadcast broadcasts, regardless of whether the legal form is public or private, or whether the activity is commercial or non-profit (cf. BVerfGE 95, 220 ; 97, 298 ). The decision of the Higher Administrative Court intervenes profoundly in this guarantee dimension of freedom of broadcasting; this applies regardless of the examination of whether the intervention is justified in relation to the rights of the parties participating in the election under Article 21 paragraph 1 of the Basic Law. The question at issue is not whether the applicant will even take into account a legitimate public interest in the presentation of the results below the limit of five percent of the valid second votes cast in the electoral area under Section 3 paragraph 1 sentence 1 of the Federal Elections Act. His broadcasting concept is precisely open to this. Rather, it is about assessing at what percentage of the vote share below mandate-relevant results the presentation of these should begin. The criteria for setting this limit cannot be clearly determined either in fact or in constitutional law. The limit drawn by the Higher Administrative Court does not follow any compelling objective reasons. A different definition could also be supported. The exact limit can only be set in individual cases, taking the overall circumstances into account, and not in the abstract in advance. This is because it must also take into account vote movements in comparison to previous election results in this area, which may only become apparent in the course of the projections and (partial) results in the broadcast. Determining in advance which range of election results below five percent of the vote is significant in any case takes away any scope for adapting an editorial concept that may become necessary in the not always predictable course of program planning. The scope for presenting the results is clearly outlined by the contested decision and, conversely, program freedom is significantly restricted, although the focus of interest in reporting on the (expected) results of the election is different. The focus is on the composition of parliament and the majorities there for possible government formation.
If the requested interim injunction is granted, it may happen that the Animal Protection Party will not be represented at the applicant’s presentation of the results. This loss of representation in the post-election reporting is not of significant importance in view of the rights guaranteed to the parties by Article 21 Paragraph 1 of the Basic Law.
Article 21 paragraph 1 sentence 1 of the Basic Law protects the right of parties to equal opportunities in political competition in its entirety (cf. BVerfGE 148, 11 ; 154, 320 ; 166, 93 para. 172). The exclusion of broadcasts that are particularly popular with the public can, under certain circumstances, permanently worsen a party’s chances in competition with other parties. This applies in particular to pre-election reporting (cf. BVerfGE 82, 44 ). In the present case, however, it is a matter of post-election reporting, which at best has an indirect connection to a party’s chances in elections (cf. BVerfG, decision of the 2nd Chamber of the Second Senate of October 8, 2023 – 2 BvQ 189/23 -, para. 18). This is because at that point in time the parties’ campaign for votes had already ended and is only relevant for the future. However, there is no temporal connection with the elections that will take place immediately afterwards. There is also no direct connection from the future efforts of the Animal Protection Party to recruit new members and raise donations for the party. On the other hand, post-election reporting does not appear to have a decisive influence on parties that (probably) fail to meet the threshold. The interest in post-election reporting is primarily focused on the distribution of seats in the future parliament and the influence of the majority there on the formation of the future government. The question of future support for parties that do not win any seats will (again) become a focus of interest following the reporting on the election results. The focus on election night and the following day, for which the Higher Administrative Court issued the order, is not on this. Other broadcast formats are primarily available for this.
In the overall assessment of the resulting consequences, the disadvantages that the applicant faces if the requested interim injunction is refused outweigh the disadvantages that the Animal Protection Party would face if the injunction were granted. While the losses that the Animal Protection Party may suffer – depending on the (expected) election results – are not of significant importance for future chances in party competition, the disadvantages for the applicant’s broadcasting freedom at the time of his reporting would be significant. This different level of interference with the guaranteed content of broadcasting freedom on the one hand and the equal opportunities of the parties on the other hand means that the applicant’s disadvantages outweigh the other.
