Tagesschau App unlawful?

In the view of the Higher Regional Court (OLG Köln), the Tagesschau App available in 2011 is press-like in nature and may no longer be distributed in this form.

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Since December 2012, the public broadcasting institutions have offered the "Tagesschau App" for smartphones and tablets. Through this application, content from tagesschau.de could be accessed. The offer consisted of text, audio and video contributions as well as interactive elements. Eleven leading newspaper publishers took the view that the offer provided via the Tagesschau App was contrary to competition law. They argued that it violated market conduct provisions of the Broadcasting State Treaty (Rundfunkstaatsvertrag), according to which non-broadcast-related press-like offers in tele-media are unlawful.

The Higher Regional Court (OLG Köln) initially rejected the claim with judgment of 20.12.2013 – 6 U 188/12. It proceeded on the basis that a corresponding breach could not give rise to competition law claims, since the offer had been classified as not press-like during a corresponding examination by the Broadcasting Council (Rundfunkrat) and approved. However, the Federal Court of Justice (BGH) denied the binding effect of this decision and instructed the Higher Regional Court (OLG Köln) to examine itself whether the app offer should be classified as press-like (BGH judgment of 30.04.2015 – I ZR 13/14).

Court decision – Tagesschau App press-like

In its judgment of 30.09.2016 – 6 U 188/12, the Higher Regional Court (OLG Köln) has now undertaken the examination and affirmed the press-like nature of the app (Press release of 30.09.2016).

In doing so, the court assessed the entirety of the non-broadcast-related content and concluded that already the start pages and overview pages of the app, which by design were the first to appear to users, consisted exclusively of text and still images and predominantly contained references to text pages – possibly illustrated. On the subsequent levels, too, the design of the documented contributions was characterised, with few exceptions, by the fact that they were self-contained news texts that were comprehensible in themselves and partly illustrated with still images.

Overall, texts and still images were in the foreground of the design. This is to be qualified as press-like according to the provisions of the Federal Court of Justice (Bundesgerichtshof).

Conclusion

The Tagesschau App offer in its earlier form was characterised by non-broadcast-related news texts and was therefore press-like in nature. Since corresponding press-like offers in tele-media are unlawful under the Broadcasting State Treaty (Rundfunkstaatsvertrag), newspaper publishers were able to successfully take action against the anti-competitive conduct.