Decision of the Federal Court of Justice regarding the Tagesschau app

In its decision of 30 April 2015 in the competition law proceedings of the newspaper publishers against ARD (the Working Group of the Public Broadcasters of Germany) and the broadcaster NDR regarding the permissibility of the Tagesschau app, the Federal Court of Justice partially overturned the decision of the previous instance and remanded the case to the Higher Regional Court of Cologne for review (case no.: I ZR 13/14). In its decision, the Federal Court of Justice classifies the prohibition under broadcasting law of press-like offerings not related to broadcast programs as a regulation of market conduct in the meaning of Sec. 4 No. 11 Act Against Unfair Competition. In addition, the approval for release of “tagesschau. de” as the result of the three-stage test has no binding effect for the proceedings.

Background of the legal dispute

The subject of the dispute is the permissibility of the telemedia offering of the Tagesschau app, a mobile form of transmission of the online offerings of “tagesschau.de”, which has been offered by the German public broadcasting corporations since December 2010. Within ARD, NDR is responsible for the Tagesschau.

The newspaper publishers‘ cease and desist action under competition law is aimed at having the Tagesschau app in its version of 15 June 2011 prohibited. Their position is that the Tagesschau app violates the prohibition under broadcasting law of nonbroadcast program-related press-like offerings in accordance with Sec. 11d Para. 2, Sentence 1 No. 3, Half-sentence 3 of the Interstate Broadcasting Treaty (RStV), and is thus impermissible. In the opinion of the newspaper publishers, the prohibition of non-broadcast-related press-like online offerings constitutes a regulation of market conduct in the meaning of Sec 4 No. 11 Act Against Unfair Competition.

The holdings of the courts of previous instances

While the Regional Court of Cologne held the offering of the Tagesschau app in the version of 15 June 2011 to be incompatible with the Interstate Broadcasting Treaty, and enjoined its further distribution (Decision of 27 September 2012, case no.: 31 O 360/11, ZUM-RD 2012, 613), the Higher Regional Court of Cologne dismissed the suit of the newspaper publishers (Decision of 20 December 2013, case no.: 6 U 188/12, ZUM 2014, 245). The appellate court was of the opinion that the Tagesschau app was merely a mobile form of transmission of the “tagesschau.de” online offering, and identical to it in terms of content. The online offering of “tagesschau.de” had previously been assessed as being non-press-like by the State Chancellery of Lower Saxony and approved for release.

Since 2009, in the course of the “three-stage test” the contents of the online offerings of the German public broadcasters must be well-defined and approved by the Broadcasting Board (Rundfunkrat) of the broadcaster and by the relevant legal supervisory authority. With its approval, the respective legal supervisory authority confirms that the online offering is within the scope of the legal mandate of the public broadcasting corporations.

The Higher Regional Court of Cologne felt itself bound by the legalizing effect of the approved telemedia concept. For this reason, it did not need to conclusively determine whether the prohibition under broadcasting law of press-like offerings not related to programs represents a regulation of market conduct in the meaning of Sec 4 No. 11 Act Against Unfair Competition. However, the Higher Regional Court of Cologne was inclined to categorise Sec. 11d Para. 2, Sentence 1, No. 3, Half-paragraph 3 RStV as a market access regulation, with the consequence that a violation thereof would not automatically be considered a violation of competition law under Sec. 4 No. 11 Act Against Unfair Competition.

The approval of the telemedia concept has no binding effect

Contrary to the opinion of the Higher Regional Court of Cologne, the Federal Court of Justice has now ruled in response to the appeal of the newspaper publishers that the approval of the telemedia concept for “tagesschau.de” by the State Chancellery of Lower Saxony is not legally binding for the purposes of the legal dispute. According to the press release, the legal reasoning behind the decision was that the approval of the “tagesschau. de” offering related only to a concept; it did not constitute an approval as non press-like for the actual implementation in a particular case.

Prohibition on offerings not related to presslike broadcast programs is a regulation of market conduct in the meaning of Sec. 4 No. 11 Act Against Unfair Competition

The Federal Court of Justice is also of the opinion that the prohibition on press-like offerings not related to broadcast programs in accordance with Sec. 11d Para. 2, Sentence 1, No. 3, Halfsentence 3 RStV represents a regulation of market conduct in the meaning of Sec. 4 No. 11 Act Against Unfair Competition.

According to the Federal Court of Justice, the prohibition (at least inter alia) serves the purpose of restricting the activities of public broadcasting institutions in the market for telemedia offerings, thereby protecting print media. A violation of the prohibition on press-like offerings not related to broadcast programs could thus serve to establish claims under competition law.

The Higher Regional Court of Cologne must now examine whether the offering of the Tagesschau app in its version of 15 June 2011 is to be categorised as “press-like”. It is not individual items that will matter, but whether all items not related to a specific broadcast program are press-like in their totality. This is to be assumed if a significant majority of the piece consists of text.

ARD has no legal standing

With regard to ARD, the Federal Court of Justice rejected the complaint as impermissible because ARD is merely an association of broadcasters, which as such lacks legal capacity and thus cannot be sued.

Partial victory for the newspaper publishers

The Federal Court of Justice‘s decision represents a partial victory of the newspaper publishers against the online activities of the public broadcasting corporations. The newspaper publishing houses have been attempting for years to curb the broadcasting fee-funded online activities of the public broadcasters.

Conclusion

The First Civil Senate of the Federal Court of Justice, responsible for competition law cases, has issued a decision on broadcast law. The decision is convincing in terms of its reasoning  from a competition law perspective, but deviates in two respects from the view prevailing in the literature which considers the approval of a telemedia concept by the relevant legal supervisory authority to have legally binding effect. In addition, provisions of the Interstate Broadcasting Treaty precisely laying out the scope of the mandate of public broadcasters have previously been understood to be mere market access regulations which cannot establish a basis for claims for injunctive relief arising under competition law. If the Higher Regional Court of Cologne, on the basis of the available screenshots, judges the specific offering of the Tagesschau app of 15 June 2011 as excessively text-heavy and thus press-like, one cannot rule out the possibility that the Federal Constitutional Court may also wish to put in their two cents’ worth; in the past, the Court has generally been friendly territory for Germany‘s public broadcasting corporations.