The complainant is a lawyer and uses the PC in his office, among other things, for internet applications. He does not use it to receive radio broadcasts and does not have any conventional radio receivers. The broadcasting authority set broadcasting fees for the internet-capable PC. The Federal Administrative Court dismissed the complainant's action against this in the final instance. The Internet-capable PC was a radio receiver which the complainant had made available for reception. The fees charged for this did not violate the complainant's fundamental rights. The Second Chamber of the First Senate of the Federal Constitutional Court did not accept the constitutional complaint against the decision of the Federal Administrative Court for decision because the requirements for acceptance were not met. The complainant's fundamental rights are not violated by the levying of broadcasting fees for his internet-enabled PC.
The decision is essentially based on the following considerations:
(1) The challenged decision does not violate the complainant's right to freedom of information. It is true that the complainant is hindered in obtaining and receiving information from the internet by the levying of the broadcasting fee. However, this interference is constitutionally justified. The broadcasting fee for Internet-capable PCs is levied on a formal constitutional basis. It falls under the legislative competence of the Länder for the area of broadcasting. It is not a tax, but a preferential burden. The fee is linked to the status as a broadcasting subscriber, which is established by the availability of a radio receiver. Furthermore, the relevant provisions of the Interstate Broadcasting Fees Treaty do not violate the requirement of certainty. The obligation to pay broadcasting fees for internet-capable PCs is not disproportionate, as the Federal Administrative Court correctly reasoned in the challenged decision. It serves the financing of public broadcasting. The levying of fees is suitable and necessary to achieve this goal. Blocking access is not an equally effective means, because there are doubts as to whether it is safe to circumvent and because it would collide with the basic service mandate of public service broadcasting. Furthermore, the charging of broadcasting fees for Internet-capable PCs is not unreasonable. The complainant is not directly prevented from obtaining information from the other offers of the internet, but is only burdened with a relatively low payment obligation in the amount of the basic fee. This only minor impairment of the freedom of information is offset by a purpose of some weight, namely to ensure the functioning of public service broadcasting.
(2) The obligation to pay a levy for the internet-capable PC used as a work tool does not constitute an encroachment on the freedom of occupation because there is no direct connection to the complainant's occupational activity or an objective tendency to regulate the occupation.
Furthermore, there is no violation of the general principle of equality. The equal treatment of owners of conventional and new types of radio receivers is based on a reasonable, plausible reason. It is intended to counteract a threatening "flight from the licence fee" and thereby ensure the functionally adequate financing of public broadcasting. The unequal treatment of owners of PCs with internet capability compared to persons without a receiver is also justified. The advantage of use resulting from the provision of a receiver is an objective criterion for differentiation.
Source: Press release of the Federal Constitutional Court
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
