Unlike its citizens, the state cannot lean on the basic right of free speech when it comes to its communciation. In his PhD project, Tobias Mast exmaines the legal requirements of the state’s communication with its citizens.
What legal requirements does the state have to deal with when communicating with the public? Since the state entered the age of the information society, it shows it has a range of instruments and develops its self-perception to an interactive partner who helps every single citizen in his/her way of life and decision-making. The variety of informational forms of decision-making include traditional actions like the government’s public relations, reports of the authorities for the protection of the constitution as well warnings and recommendations regarding in the food sector and in the field of environment. Recently, there are also new phenomena of indirect or collaborative acts of information, such as the “Ärzte-TÜV” (“supervisiory association of physicians”). However, despite the significance and topicality of this topic, the development and ascertainment of substantive and procedural principles is still in its infancy. This PhD project aims on gaining knowledge on general dogmatic requirements and rules to consider in order to contribute to the rationalisation and unification of the information activities of the state.
Since the beginning of the 90s, the professional public is paying more and more attention to the information activities of the state, which have no redress in law, as an object of research. The goal of this project is to present substantial and procedural principles and to revise these on general validity or needs for differentiation by state authorities or fulfilling functions. Jurisdiction and jurisprudence developed the conditions for legitimacy and principles over time, which have to be considered by the state within the scope of its information activities. However, there is no reliable dogmatic (yet), just because the primarily source of law is in this sense highly judicial casuistry. The Federal Court of Justice requested the principles of objectivity, validity and integrity for statements given by the state. In other rulings, the requirement of prior hearings of persons concerned was indicated. However, it is usually not clear if these evaluations can be generalized and what they demand regarding the context. In the area of active communication of the state a less consistent dogmatic is given, while other areas of the information law, such as aspects of personal rights, are strongly differentiated and where it withstands with technical and actual developments. Little has changed since the groundbreaking rulings “Osho” and “Glycol” by the Federal Court of Justice in 2002, although the manifestations were more and more differentiated and diverse. By now, the public relations of the state’s authorities have strongly increased on federal, state, and municipal level. Many local police headquarters are active in social media, and also the government informs the interested public via its own Facebook profile. There are also new judicial subjects besides the traditional ones of requirements of a legal basis and the intervention quality of purely formal administrative matters: Is it allowed that the police addresses participants of an assembly online informally, how they usually do in this established administrative practice? Are the strictly content-related regulations of the state’s communication applicable to collaborative information platforms that are filled with information primary by citizens? Are there more basic principles regarding the content besides the one from the Federal Court of Justice? And how can these be differentiated? These are only a few emerging and largely unsettled but relevant questions.
As the content-related principles mentioned above concerning accuracy, objectivity and integrity of information are particularly important when it comes to information activities of the state. Unlike the constellations of the reactive activity, following an application e.g. from the IFG [German Freedom of Information Act], the UIG [Environmental Information Act], the VIG [Consumer Information Act] or Landespressegesetz [Freedom of the Press Act?], the uttered information is not already covered by the intention. Moreover, when acting actively, there is the risk that the appraisal of the authority/state (contrary to statements of facts) is uttered in a impertinent, lurid or inappropriate way. However, only the citizen has the right to those actions under reference to the right of freedom of expression in accordance with Article 5 (1) of the Basic Law. Government agencies cannot express themselves just as they like it but have to act within their competences in order to perform their tasks. This is another area, in which any questions concerning the textual specification of principles are unsettled. The content of the principles mentioned above is often published without reflection. By no means, it is clear whether information has to be always complete, because an “information overload” has to be avoided since it can lead to complexity and confusion for the addressee. It has only be discussed separately whether the act of accuracy is absolute and valid without restrictions or if a legislation could possibly persist as a lie. The PhD project seeks to find answers to all these questions. Thereby, it is of significant relevance if the findings are valid for each public agency - from the government to the district office - or if other findings are more suitable regarding the various functions and competences.