The plaintiffs, eleven German publishing houses, had argued that the app violated § 11 of the German Broadcasting Treaty (Rundfunkstaatsvertrag, RStV). § 11 RStV prohibits Public Service Broadcasters from publishing content not related to their programmes in a press-like way and aims at protecting private publishers from the distortion of competition resulting from press-like activities by Public Service Broadcasters on the internet.
In the first instance, the OLG Cologne had dismissed the case. It stated that the responsible broadcasting board had evaluated the app as not being press-like and that the Court had to follow that evaluation.
After an appeal by the plaintiffs, the Federal German Court (Bundesgerichtshof, BGH) decided that the evaluation of the app by the broadcasting board was not binding for the Court, and that the Court had to make its own decision on whether the app had to be evaluated as press-like or not. The BGH also stated that press-likeness had to be affirmed, if text passages and pictures chracterised the app rather than audio and video streams. The BGH referred the case back to the OLG Cologne.
Evaluating these aspects, the OLG Cologne decided that the disputed version of the app indeed has to be classified as press-like. The judges stated that the documentation of the app submitted by the plaintiffs in hard copy were sufficient to evaluate the app. As the Court evaluated the start screen, which was being presented to the users whenever they opened the app, it showed that it mainly consisted of text passages and still pictures. The pages, to which the users were directed if they wanted to follow any of the links or stories, showed single coherent texts and some still pictures as well. Because the pages showed very few audio files or video elements but very many press-like elements such as coherent text passages and photos, the OLG affirmed the app’s press-likeness according to the guidelines, which were given by the BGH. The Court therefore decided that the Public Service Broadcaster is not allowed to publish the app in its disputed version anymore.
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