The complainant, based in the United Kingdom, organises events worldwide of mixed martial arts, a combination of the five Olympic sports of boxing, freestyle wrestling, Greco-Roman wrestling, taekwando and judo with other traditional martial arts techniques such as karate and kickboxing. The martial arts events are broadcast in more than 100 countries. In Germany, the broadcasting of the martial arts formats produced by the complainant was carried out by DSF Deutsches SportFernsehen GmbH, now Sport 1 GmbH, on the basis of a programme change licence from the Bavarian Regulatory Authority for Commercial Broadcasting (BLM) and a licence agreement with the complainant.
In March 2010, the BLM ordered DSF GmbH to refrain from broadcasting the complainant's television programmes because the massive use of violence in a manner harmful to minors contradicted the model of broadcasting which, according to the Bavarian Constitution, is publicly responsible and operated under public law. DSF GmbH complied with the BLM's request. The
The complainant filed a complaint against the BLM's decision and at the same time applied for interim legal protection. The application for interim relief was unsuccessful at all instances.
The complainant filed a constitutional complaint against both the BLM's decision and the administrative court decisions and at the same time filed an application for a temporary injunction with the aim of obliging the BLM to allow the broadcasting of its martial arts programmes.
The 1st Chamber of the First Senate of the Federal Constitutional Court has refused to issue this interim injunction.
However, the constitutional complaint is neither obviously inadmissible nor obviously unfounded. Rather, it raises unresolved constitutional questions already at the admissibility level, which will have to be decided in the constitutional complaint proceedings, i.e. in the proceedings on the merits. In particular, it needs to be clarified whether and to what extent the complainant, which is only involved in the organisation of television programmes as a supplier of individual programmes, can invoke the freedom of broadcasting pursuant to Article 5.1 sentence 2 of the Basic Law in addition to the programme organiser. The question of whether the complainant can invoke Article 12.1 of the Basic Law from the point of view of indirect encroachment on fundamental rights also requires further examination.
After weighing the consequences in the summary proceedings decided on alone here, an interim injunction is not to be issued. It is true that the financial losses suffered by the complainant due to the loss of licence fees are not insignificant. Likewise, its possibilities to make the sport "Mixed Martial Arts" known in Germany will be limited, unless it finds another television provider who is willing and entitled to broadcast its formats. However, it is not evident that the promotion and marketing of the sport "Mixed Martial Arts" in other countries would be endangered without the broadcasting of its programmes in Germany. Moreover, according to the complainant's own information, she can also report on this sport in Germany via the internet.
Taking into account the weight of the interests of the protection of minors, the disadvantages suffered by the complainant are therefore not so severe that the issuing of a temporary injunction would be urgently required. If a temporary injunction were to be granted and the constitutional complaint proved to be unfounded, programmes would possibly be broadcast for a longer period of time which, due to their potential for violence and their media presentation advocating violence, trivialised aggressive behaviour and had the effect of being harmful to minors.
Order of 8 December 2010 - 1 BvR 2743/10
Source: Press release of the BVerfG dated 21.12.2010
Goldberg Attorneys at Law 2011
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
