Do municipalities violate freedom of the press when they report on the local bicycle club’s next big tour and publish company profiles with pictures and promotional text to strengthen the downtown area? Or is such content covered by the municipalities’ mission to provide services of general interest?
Press publishers have been suing municipalities for (allegedly) overly press-friendly Internet portals since 2019, for example Dortmund and Munich. Dortmund.de had a focus on city life news, while muenchen.de mainly offered an extensive business directory with company profiles. Both cities lost in the first instance; on appeal, the city of Dortmund prevailed, while Munich lost again. The appeal was allowed in each case because the Federal Court of Justice (BGH) has not yet clarified the requirements for municipal public relations work on the Internet. The standards applied by the courts of instance stem from a 2018 BGH decision that still referred to printed official journals with editorial news and advertising sections.
What limits must municipalities observe in their public relations activities according to current case law?
Contributions that do not concern topics of the city administration and local politics are largely considered inadmissible, especially if they are “presented in a press-like manner” (for example, with pictures, headlines and sub-headlines, longer texts). Reporting on local business and local cultural and club life is largely closed to the municipalities by the “requirement that the press be independent of the state”. In these areas, he said, the municipality may at most offer emphatically factual information, but not “press-like reporting.” In addition, advertisements in municipal publications should not exceed in scope the fulfillment of a “fiscally motivated marginal benefit.”
What is the penalty for (alleged) violations of these rules?
Press publishers offering products in the municipality in question can sue for injunctive relief in the district courts on the basis of competition law. However, the action only has a chance of success if not only individual inadmissible contents are to be recorded, but the official gazette or the municipal Internet portal violates the “requirement that the press be independent of the state” when viewed as a whole from an “evaluative point of view”. An overall assessment can still be made with reasonable effort for a specific issue of a print publication. For Internet portals, on the other hand, whose widely ramified content has accumulated over years, it is a particular challenge. There can be tens of thousands of pieces of content to evaluate. In civil proceedings, the plaintiff must plead the facts that substantiate his or her asserted claim. If he/she only submits a complaint regarding the inadmissibility of individual contributions, he/she may only be referring to a very small part of the entire content of an Internet portal. For example, the Higher Regional Court of Hamm pointed out that it was not required to examine the (entire) dortmund.de Internet portal or its individual sections for typical press content ex officio without corresponding factual evidence from the plaintiff press publisher. The claim was dismissed in this case, (also) because the plaintiff had not made sufficient submissions to enable an overall assessment to be made.
The courts objected, for example, to press coverage in municipal publications about the local Bundesliga soccer club, reports about certain restaurants or a report about a private sailing school. A particular problem – besides indisputably newspaper-like news – is advertising. Many municipal websites feature company profiles, often with photos and a promotional description of what they offer. The placement of company profiles is often not simply a source of revenue for local authorities, but part of a cooperation with local businesses to strengthen the location, especially the city centers. So far, this has not impressed the courts of instance. This was the ruling of the OLG Munich (judgment of 30.09.2021, file number: 6 U 6754/20) on the city portal muenchen.de:
“For example, general reference may be made to places of interest, even if they are ‘private sights’ […]. Likewise, information may be provided in general form about all circumstances that characterize the city or municipality or certain parts of the city, such as the city’s history, the prevailing architectural style, the existing infrastructure, settled companies, significant events and ‘events’ or the existing gastronomy. In doing so, however, the municipalities must above all observe the principle of objectivity and neutrality. This applies in particular insofar as reference is made to private sights, companies, events or catering establishments. Here, the municipality must essentially limit its content to concise factual information and may not itself report in detail about, for example, […] a particular business enterprise or a particular restaurant or café. Above all, it is no longer covered by the scope of city marketing or tourism promotion if the municipality holds information in this regard that is perceived by traffic as a state recommendation ” [Hervorhebungen durch den Verfasser].
What does this mean for municipal practice?
The topics on which municipalities publish content on their Internet portals and whether this content may contain longer texts and photos remain unresolved by the highest court until a BGH ruling. The previous jurisprudence has its opponents. Parts of the legal literature as well as municipal practice emphasize the right of municipalities to report on the “affairs of the local community.” This also included club life, culture or church communities. This type of community communication on local issues strengthens the identification of individuals and the population with the community, he said. In fact, informing residents about local issues is part of public service. In many cases, community communications make up for a deficit in the breadth and depth of press coverage of local events. In addition, attractive Internet portals are also crucial for effective community marketing, he said. Opinion neutrality and objectivity of the community are as important to this view as they are to jurisprudence. But communities are allowed a wider range of topics on which reports may be published.
There are three main approaches available to municipalities for their Internet portals.
The (unchanged) operation of websites with advertising and a lot of editorial content on local business, club life and other local events creates a comparatively high risk of legal attack due to current case law. The restriction to community-related content and, at most, very brief information beyond that brings greater legal certainty, but reduces the overall attractiveness of the website and can thus reduce its reach. If no clear course is to be taken in one direction or the other, a compromise solution is an analysis of the website , which examines possibilities for the most moderate possible restriction with regard to problematic topics and a problematic way of “press-like presentation”. What such a restriction might look like in individual cases can then be decided on the basis of an individual risk assessment . Feel free to contact us if you are faced with the question of which of these paths to take with your municipal Internet portal.
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