Objections to Sat.1 – Justified?

Advertising must be clearly separated from other programme content on television. However, how far does the requirement of the Interstate Broadcasting Agreement extend? The Federal Administrative Court (BVerwG) demonstrates a certain strictness in its ruling.

The broadcaster of the television programme Sat.1 had brought the action. It thereby sought to challenge a decision of the State Media Authority. The State Media Authority objected that the claimant had breached the broadcasting law requirement to separate advertising from programme content.

Sat.1 broadcast a programme notice during the breaks in various series – on the one hand for a boxing match, on the other hand for the casting show 'The Voice of Germany'. In both cases, the lettering 'WERBUNG' was superimposed on the programme announcements. This was followed by the first advertisement spot.

The court at first instance ruled in favour of the claimant. The appellate court, however, took a different view.

Court's Decision

The BVerwG in Leipzig confirmed with Judgment of 14.10.2015 – Az. 6 C 17.14 the decision of the first instance. A television broadcaster breaches the requirement of the Interstate Broadcasting Agreement to clearly separate advertising from other programme content if, before advertising begins, although the lettering 'Werbung' is superimposed on a still-running programme notice, the continuing programme notice visually dominates the screen. The breach was justified on the grounds that, according to the Interstate Broadcasting Agreement, advertising must be unambiguously separated from other programme content by visual or acoustic means appropriate to the medium or spatially. References to the broadcaster's own later broadcasts are also 'other programme content' in this sense. The court applied the standard of the average attentive viewer. In the court's view, the very brief superimposition of the lettering 'Werbung' did not sufficiently clearly indicate to such a viewer that advertising would begin immediately thereafter, owing to the visual dominance of the continuing programme notice.

Conclusion

Following the BVerwG's decision, in future television broadcasts will probably not be permitted to show references to advertising at the same time as programme notices.