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The Need to Separate Advertising and Content as a Fundamental Principle of German Society

We move on to the post-lunch session at Alcatel-Lucent Foundation / HBI 2009, which opens with an introduction by Wolfgang Schulz, Director of the Hans-Bredow-Institut where I'm currently based. He notes the legal problems with the integration of advertising into programming (as product placement, or in related forms). Traditionally, German law requires a clear separation of advertising and programme content; do changes in advertising principles weaken this separation, or can it be upheld?

Karl-Heinz Ladeur from the universities of Bremen and Hamburg opens this discussion, and notes that there is a controversy about the interpretation of relevant laws. He suggests that the basis for this in German law is the constitutional guarantee for the freedom of broadcasting, and that these legal frameworks provide for changing societal conditions. The aim remains diversity in programming, and broadcasters need to be able to realise their programmatic intentions. This may require different rules for the separation of advertising and content, depending on programme genres and other broadcasting contexts, rather than a one-size-fits-all interpretation of the law.

This points to a need to support self-organising processes in the media, allowing new forms of advertising to be explored. If the media's primary role has shifted from information to entertainment, for example, then the door towards more product placement can be opened more widely without constitutional concerns. Additionally, we must keep in mind that audiences today are more media-savvy; they can be expected to identify advertising even without overt labelling.

Further, so far we know only a few of the forms of advertising and product placement which may be possible; this means that it would be preferable to hold back on extensive regulation at this point in order to allow further innovation in this field. Clear and universally applicable rules on what is or is not acceptablein advertising are problematic if they do not take into account the variety of advertising approaches - case-by-case rulings by the regulatory bodies of the German states are preferable to a binding national solution here.

If such flexible solutions are successful, this may also enable new cross-subsidy models which take a percentage of the profits from such new advertising approaches in order to fund the further development of quality content.

The opposing statement on this issue is delivered by Karl-E. Hain from the university of Köln. He begins by noting that recent decisions on advertising practices highlight the wide variety of advertising approaches. To rely on self-regulation mechanisms in this case is utopian, he suggests - the creative energy of advertisers is used to invent new advertising models, not to develop functional self-regulatory approaches. However, it is clear that a clarification or modification of current legal frameworks is necessary.

The separation of advertising and programming content is based on central principles of modernity, Hain suggests - and its undermining may be a sign of the further dismantling of modernity as a leading model. The foundation for this separation ultimately lies in the guarantee of human dignity in the German fundamental law, Hain says - in the principle of autonomy for each citizen, of freedom to act as a citizen.

Such autonomy and participation relies on media in modern society, and this necessarily requires a regulation of mass media in order to avoid their misuse. There is a need for diversity in programming, and a distance between the media and other major groups in society, including the state. For as long as public media organisations are effective, however, privately-owned media organisations need not be regulated as strongly.

The advertising industry must not have a dysfunctional influence on the media, then, and the need for content separation is one means of achieving this. Product placement and other potentially misleading forms of advertising may need to a disorientation of the individual in society and may therefore turn the citizen from active, self-determined subject to passive object.

The requirement to separate is not just a hindrance for the effective financing of content, therefore, in spite of how the advertising industry may portray this - it is also a fundamental principle which supports the continued functioning of society. While the democratically legitimised legislative must maintain this principle, as the representative of the people, each citizen is similarly charged with ensuring that this principle is maintained.

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