On the admissibility of the "Tagesschau" app

The First Civil Senate of the Federal Court of Justice, which is responsible among other things for competition law, dealt with the admissibility of the "Tagesschau App".

The plaintiffs are newspaper publishers. The 1st defendant is the Association of Public Service Broadcasters of the Federal Republic of Germany (ARD), the 2nd defendant is Norddeutscher Rundfunk. Since 1996, the broadcasting corporations united in the 1st defendant have operated the online portal "tagesschau.de", which is managed by the 2nd defendant. In 2009, the provisions of §§ 11d, 11f RStV were inserted into the Interstate Broadcasting Treaty. According to these provisions, public service broadcasters have to specify the content of their telemedia offerings in telemedia concepts and to subject these concepts to a review known as the "three-step test". The broadcasting corporations which were united in the 1st defendant then developed a telemedia concept for the online portal "tagesschau.de" under the leadership of the 2nd defendant. This concept was adopted by the Broadcasting Council of the second defendant in 2010, released by the Lower Saxony State Chancellery as the legal supervisory authority and published in the Lower Saxony Ministerial Gazette.

Since 21 December 2010, the broadcasters have been offering the "Tagesschau App" for smartphones and tablet computers. This application can be used to access the content available at "tagesschau.de". This consists of text contributions - partly supplemented by still images or picture sequences - audio and video contributions as well as interactive elements.

With their action, the plaintiffs object to the offer made available on 15 June 2011 via the "Tagesschau App". They are of the opinion that this offer is anti-competitive because it violates the provision of § 11d para. 2 sentence 1 no. 3 sub-sentence 3 RStV, which is to be classified as a market conduct regulation within the meaning of § 4 no. 11 UWG. According to this provision, non-broadcast-related press-like offers in telemedia are inadmissible. The plaintiffs claimed an injunction against the defendants.

The court of appeal dismissed the action. It assumed that a possible infringement by the defendant of the ban on press-like offerings could not give rise to any claims under competition law because the offering of the online portal "tagesschau.de" had been classified as not being press-like in the course of the "three-step test" by the institutions involved in the examination and had been cleared. The competition courts were bound by this legal assessment.

The plaintiffs' appeal was unsuccessful with regard to the first defendant. According to the Federal Supreme Court, the court of appeal was right to dismiss the action in this respect. The action directed against the first defendant was already inadmissible. The first defendant, ARD, is an association of broadcasters which, as such, does not have legal capacity and cannot be sued.

With regard to the second defendant, however, the plaintiffs' appeal was successful. The Federal Court of Justice held that due to the approval of the telemedia concept by the Lower Saxony State Chancellery, it was not established - contrary to the opinion of the Court of Appeal - with binding effect for the present legal dispute that the offer made available on 15 June 2011 via the "Tagesschau App" on the online portal "tagesschau.de" was not similar to the press. With the approval, at most the concept and in any case not its concrete implementation in the individual case was approved as not being similar to the press. The prohibition of non-broadcast-related press-like offers is a market conduct regulation within the meaning of Section 4 no. 11 UWG. The prohibition at least also has the purpose of limiting the activity of public broadcasters on the market of telemedia offerings in order to protect press publishers. A violation of this prohibition can therefore give rise to competition law claims by publishers. The Federal Court of Justice referred the case back to the Court of Appeal. It must now examine whether the offer complained of by the plaintiffs was similar to that of the press. According to the Federal Supreme Court, this examination does not depend on whether individual contributions to this offer are to be regarded as similar to the press. Rather, it is decisive whether the offer of the online portal "tagesschau.de", which could be accessed via the "Tagesschau App" on 15 June 2011, is to be classified as press-like in the totality of its non-broadcast-related contributions. This is the case if the text is clearly in the foreground of this offer.


Judgment of the BGH of 30 April 2015 - I ZR 13/14 - Tagesschau app

Lower courts:

Cologne Higher Regional Court - Judgment of 20 December 2013 - 6 U 188/12,

WRP 2014, 194

Cologne Regional Court -Judgement of 27 September 2012 - 31 O 360/11


Source: Press release of the BGH


Goldberg Attorneys at Law 2015

Lawyerlt Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law

E-mail: info@goldberg.de