A student in Münster was not allowed to pay broadcasting fees simply because he owned a computer with internet capability, which could also be used to receive radio programmes. This was the decision of the Münster Administrative Court (VG Münster), which overturned - for the first time in North Rhine-Westphalia - a corresponding fee decision by WDR Cologne.
The student, who has neither a radio nor a television, had declared that he did not use his PC with internet access for broadcasting. When WDR demanded broadcasting fees of 16.56 euros (for the months of January to March 2007) from him after the exemption from fees for Internet-capable PCs, which had been fixed until the end of 2006, had been abolished, he countered that a general obligation to pay fees could not be assumed for electronic devices that could be used almost universally, just because it was theoretically possible to receive broadcasting with them. In contrast, the WDR argued that the obligation to pay fees was only linked to the availability of a device with which radio or television programmes could be received.
The 7th Chamber of the Münster Administrative Court ruled in favour of the plaintiff. Even if, according to the Interstate Treaty on Broadcasting Fees, the suitability of a device for reception was sufficient in principle and the concrete use was not important, the plaintiff was not liable to pay broadcasting fees. Whereas in the case of conventional broadcasting receivers, the simple possession of the device regularly led to the assumption that it was ready for reception, because any other use was generally excluded, the situation was different in the case of new types of multifunctional devices. In the meantime, in addition to internet-capable PCs, broadcasting could also be received with notebooks, UMTS mobile phones or even internet-capable refrigerators. However, since such devices can be kept available for many other purposes, the mere possession of such devices does not automatically mean that they are available for broadcasting reception. Internet-capable PCs in public authorities, companies or home offices were used in Germany for a wide variety of purposes, but typically not (yet) as broadcast reception devices. This also applied to internet-capable PCs in other areas. According to the so-called ARD/ZDF Online Study 2007, only 3.4% of the "onliners" and 2.1% of the total population over 14 years of age used network radio on a daily basis in 2007. The defendant had not proved that the plaintiff actually used his PC for radio reception. The chamber did not fail to recognise, according to the judges, that proving actual use was difficult in practice. However, as long as the Interstate Broadcasting Treaty adheres to the device-related obligation to pay fees without recognisably taking into account the newer technical developments, a restrictive interpretation is required, because otherwise the broadcasting fee would constitute an impermissible ownership fee for internet-capable PCs.
Judgment of the Münster Administrative Court of 6.10.2008 - Ref.: 7 K 1473/07
(not legally binding)
Source: Press release of the VG Münster of 06.10.2008
Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Michael Ullrich, LL.M. (Information Law) E-mail: m.ullrich@goldberg.de
