A student from Münster could not be charged broadcasting fees solely because he owned an internet-enabled computer capable of receiving radio programs, among other things. This has now been decided by the Münster Administrative Court (VG Münster), thereby – for the first time in North Rhine-Westphalia – overturning a corresponding fee notice from WDR Cologne.
The student, who possessed neither a radio nor a television, had stated that he did not use his internet-enabled PC for broadcast reception. When WDR demanded broadcasting fees of 16.56 Euros (for the months of January to March 2007) from him, after the fee exemption for internet-enabled PCs, which had been in effect until the end of 2006, had lapsed, he countered that a general fee obligation could not be assumed for almost universally usable electronic devices merely because broadcast reception was theoretically possible with them. In contrast, WDR argued that the fee obligation was solely tied to the availability of a device capable of receiving radio or television programs.
The 7th Chamber of the Münster Administrative Court ruled in favor of the plaintiff. Even though, according to the Interstate Treaty on Broadcasting Fees, the suitability of a device for reception is generally sufficient and actual use is irrelevant, the plaintiff was not liable for broadcasting fees. While with conventional broadcasting reception devices, mere possession regularly suggests availability for reception because other uses are generally excluded, the situation is different with novel multifunctional devices. Nowadays, broadcasting can be received not only with internet-enabled PCs but also with notebooks, UMTS mobile phones, or even internet-enabled refrigerators. However, since such devices can be kept for many other purposes, mere possession cannot automatically lead to the conclusion of availability for broadcast reception. Internet-enabled PCs in public authorities, companies, or home offices in Germany are used for a wide variety of purposes, but typically (not yet) as broadcasting reception devices. This also applies to other internet-enabled PCs. The so-called ARD/ZDF Online Study 2007 supports this, showing that in 2007, only 3.4% of "online users" and 2.1% of the total population aged 14 and over used internet radio daily. The defendant failed to prove that the plaintiff actually used his PC for broadcast reception. The Chamber acknowledged, according to the judges, that proving actual use is difficult in practice. However, as long as the Interstate Treaty on Broadcasting Fees adheres to device-related fee obligations without visibly accounting for newer technological developments, a restrictive interpretation is necessary, as the broadcasting fee would otherwise constitute an impermissible possession tax for internet-enabled PCs.
Judgment of the Münster Administrative Court of October 6, 2008 – Ref.: 7 K 1473/07
(not legally binding)
Source: Press release of the Münster Administrative Court of October 6, 2008
Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney Michael Ullrich, LL.M. (Information Law) E-Mail: m.ullrich@goldberg.de
