Conclusion on the provisions of German constitutional law

1. Data protection in broadcasting highlights the conflict in terms of basic rights relating to freedom of broadcasting on the one hand, which is indispensable to providing information to the public in a democratic society, and each person's right to data protection on the other.

2. Freedom of broadcasting represents a means to serve the public and as such a third party right to freedom. Freedom of broadcasting promotes the free forming of an opinion both at individual and public level, making it a prerequisite for a functioning democratic society.

3. The concept of freedom of broadcasting as a means to serve the public results in the obligation of public service broadcasters to provide a basic public service.

4. The principle that public service broadcasters should be autonomous, which is closely linked to the requirement of diversity, is embodied in the constitutional requirement that broadcasters shall not be subject to government authority.

5. The conflict between the right of indivduals to determine how their personal data is used and freedom of broadcasting is solved appropriately by the media privilege, which represents the implementation by the legislator of the constitutional requirement stipulated in § 5 Para. 1 Clause 2 GG (Constitution of the Federal Republic of Germany). In the case of public service broadcasting, the principle of in dubio pro securitate applied under data protection legislation must therefore be replaced, in favour of freedom of broadcasting, with the principle of in dubio pro libertate.

6. The protection of basic rights by means of specific procedures is decisive with regard to safeguarding the freedom of broadcasting. Under the constitution, it is the legislator's duty to consolidate the freedom of broadcasting through rules of procedure.

7. With the exception of Deutsche Welle, to which § 41 BDSG (German Federal Data Protection Act) applies, the individual German federal states have responsibility for data protection in broadcasting.

8. The requirement that public service broadcasters shall not be subject to government authority means that authorities must not interfere with the programming of public service broadcasters. In addition, the organisational structure of public service broadcasters shall not be subject to government authority, which means that the requirement of independence from the government also results in the right of selfgovernment for public service broadcasters

9. Given the requirement of independence from government authority, the monitoring of data protection in broadcasting through external public authorities is inadmissible under the constitution. It is therefore a requirement of constitutional law that each broadcaster appoint its own data protection officer.

10. The data protection officer is independent in his office and solely subject to the law. He has a function similar to that of a judge and cannot therefore take instructions from anyone.

11. The procedure for appointing data protection officers in broadcasting stipulated by the legislator must ensure the data protection officer's independence. If the position of data protection officer is in addition to regular duties, particular care must be taken to ensure that the different tasks are divided at organisational level.

12. In order to ensure his independence, the data protection officer must be given his own budget. The budget must at least cover the costs of running his own office.

13. Since it is virtually impossible to separate administrative personal data from journalistic and editorial data in practice, data protection officers in broadcasting must check all the data stored by the relevant public service broadcaster.

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