The Perils Of Litigating A Digital News Cycle

Michael Hedges October 10, 2016 - Follow on Twitter

Feuding publishers and public broadcasters are by no means ready to put down their pens, pixels or pitchforks. Battles over the illusive digital dividend shuttle between courtrooms and smoke-filled rooms. Laws are unclear, politicians uneasy and time passes quickly. Litigating the past, in the digital age, is quite unproductive.

Years ago, few remember exactly how long, German newspaper publishers began litigation against public broadcasters to de-fang the smartphone apps for public TV’s news program Tagesschau. Earlier court rulings allowed public broadcasters, broadly, to make use of tablet and smartphone apps so long as they did not function “newspaper-like.” Another round of lawsuits ensued to determine exactly what that meant. This past week the publishers won in Cologne Regional Court (OLG - Oberlandesgerichts) but they aren’t all that happy.

“Unfortunately the publishers have won nothing,” wrote daily newspaper Frankfurter Allgemeine Zeitung-FAZ (October 1), one of the litigants. The Cologne OLG ruling, it seems, applies only to the Tagesschau apps as they existed June 15, 2011. Publishers are sad, still, because the Tagesschau apps are available to Germans at no charge, interfering with their efforts to market news apps subscriptions.

Regional public broadcaster NDR, which leads production of the Tagesschau news programs for the ARD national network, made appearance changes to comply, more or less, with the spirit of a the 2012 Cologne OLG decision affirming publishers complaints that the smartphone and tablet apps “create unfair competition.” An appeals court checked that decision, which created the impossible condition of limiting the enforcement to a single day, but the Federal Court of Justice (Bundesgerichtshof - BGH) later affirmed the original Cologne OLG decision’s legality.

Through the entire legal process the German courts steadfastly refused to define explicitly the “newspaper-like” limitations other than telling public broadcasters to stick with audio and video in their new media creations. The warring parties were asked to negotiate something. They did not.
"Public broadcasters now have a duty to reduce their online content on the internet,” said German Newspaper Publishers Association (Bundesverband der Zeitungsverleger - BDZV) chief executive Dietmar Wolff in a statement (September 30), noting that regional public broadcasters are offering separate news apps. “Otherwise, further steps are unavoidable. A publicly financed newspaper on the internet should not exist.” The tagesschau.de website, desktop and mobile web, attracted 32 million visits in the six-months ending September 16th, according to similarweb.com.

Cologne OLG judges ruled that the Tagesschau apps that existed five years ago “infringed” a provision of the Interstate Broadcasting Agreement (Rundfunkstaatsvertrag - RStV) that forbids public broadcasters from “un-related newspaper-like” services. Under those rules, broadcasting is characterized as audio and video while newspapers are text and still-pictures. The RStV was introduced in 1987 to allow private-sector broadcasting in Germany and protect public broadcasting structures. It has been revised 18 times. The RStV allows public broadcasters to make use of the internet and mobile apps.

The decision, said regional public broadcaster Norddeutscher Rundfunk (NDR) legal advisor Michael Kühn, quoted by meedia.de (September 30), “has no immediate impact” as the “appearance of the Tagesschau app has changed significantly with video and audio elements significantly increased.” The Cologne OLG decision does not prohibit the current Tagesschau apps versions.

“With their free online text offerings, the broadcasters undermine every attempt by publishers to establish a functioning digital business model,” said Axel Springer chief executive and new BDZV president Mathias Döpfner at the publishers annual gathering in Berlin a few days before the Cologne OLG decision. “If a system stubbornly refuses to reform, the question must be asked whether, in the current competitive situation, the (public broadcasting financing) system still has a legitimate basis. But I sincerely hope that it will not happen.” Big German publisher Axel Springer was also a litigant in this legal battle with public broadcasters.

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