The Federal Court of Justice (BGH) ruled in its judgement of 20/12/2018 that the official gazette of the town of Crailsheim may no longer be distributed free of charge to residents. Why? – Municipalities and towns should uphold the institution of a free press and the separation of state and press. In this context, selling municipal gazettes containing editorials may infringe competition law in certain circumstances.
To what extent may municipalities sell official gazettes?
Based on the guarantee of municipal self-government pursuant to Article 28 paragraph 2(1) GG, municipalities are permitted to carry out public relations work. The clause gives municipalities the right to take full responsibility for all local affairs within the limits prescribed by law – in other words, restricted solely to matters relating directly to public administration. These responsibilities assigned by the state pursuant to constitutional law, and the authority bestowed by law to inform citizens, therefore do not allow municipalities to issue press releases containing any reference to the community they serve. The right of municipalities to perform public relations work is limited in particular by freedom of the press pursuant to Article 5 paragraph 1(2) GG and the separation of state and press, which is also based on Article 5 paragraph 1(2) GG.
These restrictions represent rules on behaviour in the market as defined by Section 3a Act against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb, “UWG”). The further a state publication encroaches upon the responsibilities of a free press, the greater the risk of infringing the separation of state and press as well as freedom of the press pursuant to Article 5 paragraph 1(2) GG. According to the BGH, a municipal publication must never offer readers with such a profusion of information as to render the purchase of a newspaper unnecessary – at least subjectively. The more obviously an expanded official gazette addresses issues that would usually motivate people to buy newspapers, the more likely it is that the independent press will lose readers. Moreover, this constitutes a top-down influencing of opinion by the state, and as such runs counter to the notion of a free press.
What can municipalities do?
The BGH judgement does not mean that municipalities may not continue to sell official gazettes. In its judgement of 20/12/2018, the BGH did however clarify that official gazettes must primarily cover matters of public administration, and may not act as an alternative to an independent newspaper.
An assessment of the overall character of an official gazette should include the visual layout, editorial elements (such as articles, comments and interviews), and how often it is distributed. Although the use of elements similar to those in the independent press and regular scheduled publication do not automatically indicate infringement of the separation of press and state and freedom of the press, this limit is breached if the printed material can no longer be clearly identified as a government publication.
Dr Fiete Kalscheuer