The First Civil Senate of the Federal Court of Justice, which is responsible for competition law among other areas, has addressed the admissibility of the 'Tagesschau App'.
The plaintiffs are newspaper publishers. Defendant 1 is the Consortium of Public Broadcasters of the Federal Republic of Germany (ARD), and Defendant 2 is Norddeutscher Rundfunk (North German Broadcasting). The broadcasting corporations united under Defendant 1 have operated the online portal 'tagesschau.de', managed by Defendant 2, since 1996. In 2009, Sections 11d and 11f of the Interstate Broadcasting Treaty (RStV) were incorporated. According to these provisions, public broadcasters must specify the thematic orientation of their telemedia offerings in telemedia concepts and subject these concepts to a review, referred to as a 'three-step test'. Subsequently, the broadcasting corporations united under Defendant 1, led by Defendant 2, developed a telemedia concept for the online portal 'tagesschau.de'. This concept was adopted by Defendant 2's Broadcasting Council in 2010, approved by the Lower Saxony State Chancellery as the legal supervisory authority, and published in the Lower Saxony Ministerial Gazette.
Since December 21, 2010, the broadcasting corporations have offered the 'Tagesschau App' for smartphones and tablet computers. This application allows access to the content provided on 'tagesschau.de'. This content comprises text articles – some supplemented by still images or photo galleries – as well as audio and video contributions, and interactive elements.
With their lawsuit, the plaintiffs challenge the offering made available via the 'Tagesschau App' on June 15, 2011. They argue that this offering is anti-competitive because it violates the provision of Section 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 Section 4 No. 11 UWG (Unfair Competition Act). According to this, non-broadcast-related, press-like offerings in telemedia are impermissible. The plaintiffs are seeking an injunction against the defendants.
The appellate court dismissed the lawsuit. It held that any potential violation by the defendants of the prohibition on press-like offerings could not establish claims under competition law, because the offering of the online portal 'tagesschau.de' had been classified as not press-like and approved by the institutions involved in the 'three-step test'. The competition courts were bound by this legal assessment.
The plaintiffs' appeal on points of law was unsuccessful with regard to Defendant 1. The appellate court – as stated by the Federal Court of Justice – rightly dismissed the lawsuit in this respect. The action brought against Defendant 1 is already inadmissible. Defendant 1, the ARD, is a consortium of broadcasting corporations that, as such, lacks legal capacity and cannot be sued.
However, with regard to Defendant 2, the plaintiffs' appeal on points of law was successful. The Federal Court of Justice held that, contrary to the appellate court's opinion, the approval of the telemedia concept by the Lower Saxony State Chancellery did not conclusively establish with binding effect for the present legal dispute that the offering provided via the 'Tagesschau App' on June 15, 2011, on the online portal 'tagesschau.de' was not press-like. The approval at most endorsed the concept, and certainly not its specific implementation in individual cases, as not press-like. The prohibition of non-broadcast-related, press-like offerings constitutes a market conduct regulation within the meaning of Section 4 No. 11 UWG. This prohibition also serves, at least in part, to limit the activities of public broadcasters in the telemedia market to protect press publishers. A violation of this prohibition can therefore establish competition law claims for the publishers. The Federal Court of Justice remitted the case to the appellate court in this respect. The appellate court must now determine whether the offering challenged by the plaintiffs was press-like. In this examination – according to the BGH – it is not relevant whether individual contributions of this offering are to be considered press-like. Rather, the decisive factor is whether the offering of the online portal 'tagesschau.de', accessible via the 'Tagesschau App' on June 15, 2011, is to be classified as press-like in the entirety of its non-broadcast-related contributions. This is the case if text is clearly predominant in this offering.
Judgment of the Federal Court of Justice of April 30, 2015 – I ZR 13/14 – Tagesschau App
Lower Courts:
Higher Regional Court of Cologne – Judgment of December 20, 2013 – 6 U 188/12,
WRP 2014, 194
Regional Court of Cologne – Judgment of September 27, 2012 – 31 O 360/11
Source: Press Release of the Federal Court of Justice
Goldberg Attorneys 2015
Lawyer Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
