Some Win And Some Lose As Court Recognizes Constant Change

Michael Hedges October 1, 2012 - Follow on Twitter

Competition in the media sphere can be ruthless. On the good side, everybody benefits from the attendant innovation. Some, though, could learn to better channel their anger. And the courts are rarely the best place.

German public television network ARD cannot distribute the smartphone and tablet app associated with nightly news program Tagesschau, ruled the Cologne Regional Court (Kölner Landgericht) (September 27) in a legal battle between ARD and German newspaper publishers that started in 2010. Think again before seeing this as an end of hostilities. Publishers may have elements of law on their side but public broadcasters have zeitgeist. 

Eight German newspaper owners and publisher association BDZV (Bundesverband Deutscher Zeitungsverleger) asked the Court to declare the Tagesschau smartphone app contrary to the Interstate Broadcasting Agreement (Rundfunkstaatsvertrag - RStV) governing activities of public broadcasters, specifically the rule stating that public broadcasters cannot provide “press like” services. Central to publisher’s moaning and groaning is the amount of text available through the Tagesschau smartphone app. The Court sidestepped that issue saying, “The judgment does not contain a general statement on length or detail of text permissible under the Broadcasting Agreement.”

The Court reiterated that public broadcasters must focus on broadcasting and not “create unfair competition” but also planted two other bombs in its ruling. The judgment applies only to the Tagesschau smartphone app as it existed the day the lawsuit was filed, June 15th 2011. Since then, text content has been reduced. “The app changes constantly,” said a Court spokesperson to Handelsblatt (September 27), so “to really create clarity in the matter” a separate order for each day of the year would be required.

Enforcement of the court order was suspended for 30 days to allow appeal to the Appellate Court of Cologne (Oberlandesgericht Köln). If that path is followed, a final decision might not be rendered for yet another year. Last February the Court asked both sides to sit and talk out an agreement. It went nowhere.

"As expected, the judgment has brought no fundamental clarification on the issue,” said ARD Chairman Monika Piel in a statement. “The decision relates to the appearance of the news app on a given day. The court’s decision is not a general prohibition of the news app. For me it confirms my opinion that the dispute will be solved politically and not through the courts. We are still willing to sit and talk with the publishers.”

“We respect the decision of (the) Cologne (Court),” said NDR general director Lutz Marmor, “although largely irrelevant” because the Tagesschau app has gone through several changes since June 15th 2011. Whether or not ARD will appeal the judgment, he said, has not been decided by ARD. The Tagesschau news program is produced for the ARD network by NDR (Norddeutscher Rundfunk).

“We are pleased that the Cologne Regional Court has asked the public service broadcasters to keep to the State Broadcasting Agreement (Rundfunkstaatsvertrag) in the future,” said BDZV President Helmut Heinen, in a statement, recognizing that the Tagesschau app remains available. “A public newspaper on the Web” should not exist, he added.

“With its ruling, the District Court of Cologne confirmed our view that the Tagesschau app in its current form is a non-program-related offer similar to the press,” said publishing giant WAZ Media Group managing director Christian Nienhaus, quoted by media portal kress.de (September 27), “which is prohibited according to provisions of the Broadcasting Treaty. ARD must conform to current law and transform its illegal press-like Tagesschau app offering to meet the statutory requirements. Until this happens, ARD must disable the Tagesschau app.”

“I hope that both sides put their recently renewed willingness to talk into action,” said German Journalists Association (DJV) chairman Michael Konken.

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