Commercial Speech, Content Regulation / Censorship, Licensing / Media Regulation
Irwin toy ltd. v. Quebec
Closed Contracts Expression
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The Higher Administrative Court in Berlin-Brandenburg determined that an online newspaper’s live streaming of programs constituted “broadcasting” which requires a broadcasting license. After the Berlin-Brandenburg media authority had prohibited the live-streamed videos and instructed the newspaper to obtain a broadcasting license the newspaper filed an action before the Administrative Court in Berlin against the prohibition and requested that the action be given suspensive effect under a provisional procedure. While the Administrative Court in Berlin and the Higher Administrative Court in Berlin-Brandenburg during the provisional procedure both granted the request for suspension of the prohibition, in the main procedure the Administrative Court found the programs constituted “broadcasting”. The Court held that the fact that viewers of live streams had no control over the timing of when to view the programming meant that live streaming met the traditional definition of “broadcasting” and therefore required a license.
BILD.de – the online platform of BILD, a German newspaper published by the Axel Springer publishing house – provided a number of live streams on their website as well as on Youtube and Facebook. The live streams were also available on BILD.de afterwards. The programs available included “Die richtigen Fragen” (the right questions), a weekly 20-minute political talk show; “Bild-Sport-Talk mit Thorsten Kinhöfer” (sports talk with a former football referee), which discusses referee decisions every Saturday after football games including discussing the live comments of viewers; and “Bild-Live”, an ad-hoc program discussing topical political events.
The Medienanstalt Berlin-Brandenburg (Mabb – Berlin-Brandenburg media authority) believed that BILD.de’s live-stream programs constituted broadcasting as defined by section 2 of the Rundfunkstaatsvertrag (RStV – Inter-State Broadcasting Agreement) and so would require a license according to section 20 of that Act. As a result, Mabb prohibited the live video streams and ordered BILD.de to apply for the required license.
On August 15, 2018 BILD.de filed an action before the Administrative Court in Berlin against the prohibition and requested that the action be given suspensive effect under a provisional procedure. The Court granted this request holding that it was highly debatable whether the videos did constitute broadcasting and therefore would need a license. Since this complex question had not yet been clarified in other court decisions and is debated within literature, the Court could not answer it within a preliminary procedure. The Court held that because BILD.de might lose audience if the prohibition remained, their interest outweighed Mabb’s interest in upholding the prohibition.
Mabb appealed this decision on the preliminary procedure to the Higher Administrative Court in Berlin-Brandenburg. The Court held that the issue was too complex and there was insufficient jurisprudence to enable it to make a clear determination of the issue in a preliminary hearing and so held that the matter would need to be finalized in the main application. However, it referred to the lower Court’s balancing of opposing rights and accepted that BILD.de could potentially suffer a loss of audience. The Court noted that Mabb had not expressed any concerns in regard to the content of the streams and said that there were no apparent reasons why a license would have been refused. Accordingly, the Court held that the potential loss of BILD.de’s audience outweighed Mabb’s general interest in enforcing the law.
The Court therefore confirmed the lower Court’s decision in the preliminary procedure, holding that the action would be given suspensive effect. The parties would therefore have to wait for the main proceedings for a final ruling on whether the live streams constituted “broadcasting” and, if so, whether a license was needed.
The main proceedings were then heard by the Higher Administrative Court in Berlin-Brandenburg.
The central issue for the Higher Administrative Court to determine was whether the BILD.de’s live streaming constituted “broadcasting”.
Section 2(1) of the RStV defines broadcasting as “linear audiovisual information and communication services within a schedule aimed at the general public and designed for simultaneous reception”. The Court applied the elements set out in this definition to BILD.de’s live streams. The Higher Administrative Court had acknowledged in the preliminary proceedings that there was no legal definition for the term “within a schedule”, but did list list criteria which could indicate that the video in question could be seen as “within a schedule”. This list included the length of a program, the number of shows, the need for a public program announcement, and the need for a cohesive sequence of programs. That Court had applied this list to BILD.de’s live streams, finding that the live streams did appear “within a schedule”. In respect of “Die richtigen Fragen” and “Bild-Sport-Talk mit Thorsten Kinhöfer” that Court had noted that they both follow a common thread and therefore a cohesive sequence of programs and appear weekly at a specific time. As for “Bild-Live” that Court noted that it has no specific time slot, but was streamed daily and was based on current events and therefore follows an editorial concept of establishing a daily news format. In addition, that Court highlighted that users receive program announcements through push messages, which also indicates that the videos appear “within a schedule”.
In the main procedure judgment the Higher Administrative Court examined the element of broadcasting being “designed for simultaneous reception”. It held that this means that the recipient does not have any influence on the beginning of the program and no possibility to fast forward, and that this applied to BILD.de’s live streams. The fact that the live streams are available on demand afterwards does not change the general categorization that they are “designed for simultaneous reception” because BILD.de has a choice to refrain from live videos and only publish the videos on demand. BILD.de had argued that the reason for live streams is that it allows for a more authentic coverage, making its content more interesting and believable to the audience. The Court noted that the importance of simultaneous reception for BILD.de could also be seen in the commentary function which allows for a direct communication with the recipient during the live streams.
The Court found that the live streams fall under that definition in section 2(1) of the RStV and are comparable to classic television programs with regard to structure, professionalism and the manner of reporting. According, the Court ruled that BILD.de’s live streams constituted “broadcasting”, and that BILD.de was obliged to apply for a broadcasting license.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In holding that an online newspaper had to apply for a broadcasting license for streaming live programming on its website, the Higher Administrative Court’s ruling restricts the sharing of live programming to only those with broadcasting licences. This technical ruling negates the welcome result in the preliminary procedure where the Court had noted that the rights of an online newspaper service to not lose its audience through a suspension of its programming could not be outweighed by the media authority’s interest in upholding the legislative requirements.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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