News – Dr. Jürgen K. Wente

March 22, 2021

Press release of the Association of Bavarian Local Broadcasting (VBL) e.V.

Inadmissible regionalized advertising at Antenne Bayern – Local radio fights back

“Antenne Bayern also wants to attract local customers for radio advertising and presents itself as an alternative to local radio and other regional advertising media. In various Bavarian metropolitan areas, corresponding offers are currently circulating. By means of geo-targeting in Internet radio, Antenne Bayern and its subsidiary Rock Antenne want to compete with local media.

The Association of Bavarian Local Broadcasting (VBL) has now initiated an expert opinion on this complex of issues. In it, attorney Dr. Jürgen Wente points out that the described activities of Antenne Bayern are prohibited under the State Media Treaty (§ 8 para. 11). The state media authorities also consider regionalized advertising in programs broadcast nationwide to be impermissible.

The VBL appeals to the legislature to clearly formulate the ban on regionalized advertising defined in the State Media Treaty in the Bavarian Media Act as well.

According to the VBL, Antenne Bayern’s new local advertising offers attack the broadcasting structure in the Free State, which has been shaped locally for decades, and endanger jobs. The local stations employ more than 1500 people.”

The expert opinion on questions of the admissibility of regionalized advertising in broadcasting programs licensed for nationwide and statewide distribution can be found here (German language only).

03 February 2021

ECJ rules on § 7 para. 11 Broadcasting State Treaty, which contains a ban on regionalized advertising on national television channels

The European Court of Justice, in its ruling announced on February 3, 2021 (Judgment in Case C-555/19) on the request for a preliminary ruling from the Landgericht Stuttgart deviating from the Opinion of the Advocate General (cf. News of October 15, 2020) made the legitimacy of a ban on regionalized advertising on national TV channels subject to stricter conditions. The Regional Court of Stuttgart must now deal with the questions of whether Section 7 11 Interstate Broadcasting Treaty

is suitable for ensuring the achievement of the objective it pursues of protecting media pluralism at the regional and local level and does not go beyond what is necessary to achieve that objective, and,
with regard to the broadcasting of advertising at the regional level, does not result in unequal treatment of national broadcasters compared to providers of advertising on the Internet.

§ 7 para. 11 of the Interstate Broadcasting Treaty is found today with identical wording in § 8 para. 11Interstate Media Treaty; the decision of the Stuttgart Regional Court will therefore also become significant for its interpretation and application.

January 19, 2021

Amendment to the Act against Restraints of Competition entered into force

On 19.01.2021 the amendment of the Act against Restraints of Competition (ARC) ” for a focused, proactive and digital competition law 4.0 and other competition law provisions” entered into force. This is intended to maintain the fundamentally well-functioning system of antitrust supervision in Germany and to strengthen it in selected areas in a targeted manner. The ARC Digitization Act serves to implement Directive (EU) 2019/1, which had to be implemented by February 4, 2021.

In implementation of the Directive, the provisions of the ARC are amended in particular in the following areas:

Investigative Powers of Antitrust Authorities,

Fines for antitrust violations,

Rules on the judicial procedure for imposing fines,

Regulations on the leniency program for antitrust violations and

Administrative assistance to other antitrust authorities.

At the same time, the amendment helps to create a regulatory framework tailored to the requirements of the digitalization of the economy, in line with the requirements of the German government’s implementation strategy for shaping the digital transformation. Insights gained in the meantime by the antitrust authorities and academia allow for further modernization of the abuse provisions. The amendment therefore contains a moderate modernization of abuse control in order to better record and effectively end the abuse of market power, especially by digital platforms. This is mainly done by considering the denial of access to data under certain conditions as anti-competitive.

In order to increase legal certainty for companies, in particular in the case of cooperations, the instrument of a decision pursuant to Section 32c, according to which there is no reason for the cartel authority to take action, will be revised and a right of companies to a decision by the Federal Cartel Office will be established under certain conditions.

Furthermore, the amendment aims to speed up administrative proceedings so that antitrust authorities can terminate antitrust violations more quickly and restore effective competition more swiftly. The rules on administrative procedure are also simplified to make it easier for the user of the law to handle the rules. Finally, improvements are made in the area of antitrust damages to ensure the effective enforcement of claims against companies involved in cartels.

This includes revising the rules on formal merger control to make them more effective and to enable the Federal Cartel Office to focus on the most competitively relevant mergers. To this end, the thresholds for merger control were modified so that the notification obligation only applies if a target company achieves or exceeds sales of € 17.5 million (previously € 5 million). In the case of the multiplier of § 38 para. 3 GWB, a distinction is again made between press products and broadcasting; for the production, distribution and organization of radio programs and the sale of radio advertising time, eight times the revenues are still to be recognized, while for the publishing, production and distribution of newspapers, magazines and their components, only four times the revenues are now to be recognized.

December 10, 2020

BGH rejects right to information about users against “YouTube”

In its ruling of December 10, 2020 – I ZR 153/17, the First Civil Senate of the German Federal Court of Justice, which is responsible among other things for copyright cases, decided that operators of a video platform do not have to hand over e-mail addresses, telephone numbers or IP addresses of their users who have unlawfully uploaded copyrighted content to the platform.

Facts:

The plaintiff is a film exploiter. The first defendant, whose parent company is the second defendant, operates the “YouTube” Internet platform. When uploading videos to “YouTube”, users must register, providing their name, an email address and a date of birth as mandatory. For the publication of a video longer than 15 minutes, a telephone number must also be provided. Furthermore, users must consent to the storage of IP addresses. The plaintiff claims exclusive rights of use in the film works “Parker” and “Scary Movie 5”. These films were uploaded to “YouTube” by three different users in 2013 and 2014.

The plaintiff has demanded information from the defendants. In the appeal instance, the parties are still disputing whether the plaintiff is entitled to information about the e-mail addresses, the telephone numbers and those IP addresses that were used for uploading the two films and used for the last access to the users’ accounts.

Process history to date:

The district court dismissed the action. The plaintiff’s appeal was partially successful. The Court of Appeals ordered the defendants to provide information about the e-mail addresses of the users who uploaded the films and otherwise dismissed the action. In the appeal allowed by the Court of Appeal, the plaintiff is pursuing its claims and the defendants are pursuing their motion to dismiss the action in its entirety.

By order of February 21, 2019, the German Federal Court of Justice stayed the proceedings and referred questions to the Court of Justice of the European Union on the interpretation of Directive 2004/48/EC on the enforcement of intellectual property rights (see press release No. 19/2019 of February 21, 2019). In essence, the Federal Court of Justice wanted to know whether the provisions of Art. 8 para. 2(a) of Directive 2004/48/EC also extends to the e-mail addresses, telephone numbers and IP addresses of the users of the services – as in the case of the defendants – who have provided services used on a commercial scale for infringing activities6.

The Court of Justice of the European Union has ruled on the questions by Judgment of 9 July 2020 – C-264/19 .

Decision of the Federal Court of Justice:

The Federal Court of Justice allowed the defendant’s appeal and dismissed the plaintiff’s appeal. The right to information on “name and address” within the meaning of Section 101 para. 3 No. 1 Copyright Act does not include information about e-mail addresses and telephone numbers of users of the services. It also does not include information about the IP addresses used for uploading infringing files or the IP addresses last used by the users of the Services to access their user account.

The term “address” in the meaning of § 101 para. 3 No. 1 Copyright Act coincides with the term “addresses” in Art. 8 par. 2 a of Directive 2004/48/EC. That provision of the Directive must, according to the judgment of the Court of Justice of the European Union delivered in response to the order for reference of the Senate, be interpreted as meaning that the term ‘addresses’ referred to therein does not refer, as regards a user who has infringed an intellectual property right by uploading files, to that user’s email address and telephone number, or to the IP address used for uploading those files or to the IP address used when the user last accessed the user’s account. There is no indication that the legislator, in structuring the scope of the information in Section 101 para. 3 No. 1 UrhG intended to go beyond the provision in Art. 8 para. 2(a) of Directive 2004/48/EC. Accordingly, a further (dynamic) interpretation of the law by the Senate is ruled out, as is an analogous application of Section 101 para. 3 No. 1 Copyright Act. An information request exceeding the disclosure of “name and address” within the meaning of sec. 101 para. 3 No. 1 UrhG also does not result from the general right to information pursuant to § 242 BGB.

Source: Press Office of the Federal Court of Justice

November 7, 2020

Today is the new Interstate Media Treaty (MStV), which replaces the previous Interstate Broadcasting Treaty (in full: Interstate Treaty on Broadcasting and Telemedia, abbrev: RStV) into force. This is a state treaty between all 16 German federal states that regulates the basic principles for the organization and provision, distribution and accessibility of broadcasting and telemedia in Germany on a nationwide basis. The necessity of creating an Interstate Treaty on the Media instead of an Interstate Treaty on Broadcasting is presented in detail in the explanatory memorandum. The regulation of a ban on regionalized advertising on national television channels, which is important for local and regional broadcasters (cf. subsequent announcement of October 15, 2020), is now included in Section 8 para. 11 Interstate Treaty on the Media.

October 15, 2020

§ 7 para. 11 Broadcasting State Treaty, which contains a ban on regionalized advertising on national TV channels, is compatible with EU law – good news for local and regional TV broadcasters

A ban on national television stations from broadcasting regional advertising is, in the opinion of General Counsel Maciej Szpunar, compatible with EU law, as he explained in his final submission of October 15, 2020 (the final motion was published by the ECJ Rs. C-555/19). Since the Court of First Instance regularly follows the Advocate General’s Opinion, a tentative decision has thus been reached.

The legal question whether § 7 para. 11 Rundunfkstsaatsvertrag (hereinafter: RStV) is compatible with EU law (only summarized here) was referred to the ECJ by the Regional Court of Stuttgart in a legal dispute between Fussl Modestraße Mayr GmbH as plaintiff against SevenOne Media GmbH, ProSiebenSat.1 TV Deutschland GmbH and ProSiebenSat.1 Media SE for a preliminary ruling, since it is of preliminary relevance to its own decision. It did not escape the attention of the Advocate General during the proceedings that the plaintiff in the main proceedings was not only supported by the defendant in the main proceedings in individual questions of law and fact (para. 61). This is not surprising, because a different result would also have been advantageous for the P7S1 group. The ECJ’s decision, which is now expected, will be welcomed above all by local and regional TV broadcasters who are not even involved in the legal dispute.

In terms of content, the Advocate General’s Opinions is convincing:

The principle of equal treatment does not preclude a ban on regional advertising on national television channels, as provided for in Section 7 Para. 11 RStV is not contrary to

This is because such a prohibition is not aimed at regulating the advertising opportunities of the various potential advertisers, but is directed at broadcasters and is intended to reserve the regional advertising market for regional and local broadcasters (para. 37). The impact of this prohibition on the different categories of potential recipients of advertising services does not derive directly from this regulation, but from the situation in which these different economic operators find themselves, in particular because of their economic size. However, the rules are the same for everyone. The principle of equal treatment cannot be interpreted to mean that legal norms must be adapted to the specific needs of each individual.

A measure aimed at ensuring the viability of regional and local television stations by reserving the regional advertising market for them and thus securing a source of financing is justified by a general cultural policy interest

By their very nature, regional and local television channels deal with topics of local interest that are not covered, or are covered very little, by national television channels. In this way, these TV stations contribute to public debate and thus to diversity of opinion on these issues. The significance of regional and local media for the maintenance of diversity of opinion and for participatory democracy is also highlighted by various bodies of the Council of Europe. A measure aimed at ensuring the viability of regional and local television stations by reserving for them the regional advertising market and thus securing a source of funding could therefore be justified by an overriding reason of general cultural policy interest (Tz. 53).

The German legislator was entitled to assume that the public interest in the existence of these institutions and in their contribution to the public debate at regional and local level took precedence over the private interest of the companies in promoting themselves via a specific communication channel (para. 67). In enacting the national measure at issue, the German legislature had not exceeded its discretion in balancing freedom of commercial expression on the one hand and the interest in protecting diversity of opinion and media on the other (para.83). However, it would ultimately be for the referring court (the LG Stuttgart) to assess, in the light of the particular legal and factual circumstances in Germany, whether the measure at issue was proportionate and, in particular, whether less restrictive measures could be envisaged. However, in order for this assessment to be realistic, the Stuttgart Regional Court may only take into account measures that can actually be taken by the national legislator. Indeed, it would lead nowhere to object to the existing measure by referring to less restrictive but purely theoretical measures (para.74).

The rapporteur’s proposed decision then reads:

“In view of the foregoing, I propose … to answer that Art. 4 para. 1 of Directive 2010/13 and the principle of equal treatment … a ban on regional advertising on national television channels, as set out in § 7 Par. 11 RStV does not conflict with this provision. Article 56 TFEU must be interpreted as not precluding such a prohibition in the absence of less restrictive measures which the national legislature could in fact introduce and which would make it possible to achieve the objective of protecting plurality of opinions at regional and local level, which is a matter for the referring court to determine”

October 5, 2020

Some 40 years after the local and regional private radio launch via FM and long after the launch of the first nationwide DAB+ programming platform in 2011, which today offers 13 public and private waves, Antenne Deutschland is launching the first purely private, nationwide DAB+ offering.

The report from the broadcast booth event, available at this link, is shown below (assuming your browser is set up for it):

Up to 16 national digital radio stations will provide a diverse, varied and commercially promising program bouquet that will change the German radio and advertising landscape.

Some of these programs are produced by Antenne Deutschland itself, while other programs are provided by third parties. From the start, the Antenne Deutschland platform and the corresponding network, for which Media Broadcast is responsible, can reach around 67 million people across Germany (approx. 83% of the population). A network expansion beyond this is planned.

Antenne Deutschland launches with planned four own programs on October 5 on the only purely private national DAB+ platform, the 2nd DAB+ Bundesmux. Program manager Claudia Dinges describes the program colors of the newly designed stations, which were developed together with the consulting firm Radio&Success and producer Jörg Kremer, as follows:

Absolut HOT: Brand new hot hits from Europe and the USA – already a popular format today via DAB+ with a new update.

Absolut TOP: The hits of the new millennium – a unique format with urban sound.

Absolut Bella: music that comes from the heart – a melodic format that stimulates but does not upset, just “bella music” for adult listeners.

Absolut Oldie Classics: The giants of the 70s and 80s – was good, stays good. Good sound and real classic hits.

In addition to the four absolute programs, Antenne Deutschland intends to produce and broadcast two more programs via the 2nd Bundesmux platform. As third-party programs, the following eight offerings have been determined, some of which will be distributed via the platform as early as October 5:

ANTENNE BAYERN – Germany’s most listened to private radio station
Drivers Classics by WIM
A second ENERGY Group program format in Germany
JOKE FM – Comedy and Hits
PROFI Radio – the innovative special interest program for handymen and do-it-yourselfers
RTL Radio – Germany’s hit radio
ROCK ANTENNE – The best rock nonstop for Germany!
TOGGO Radio – The new children’s and family radio by SUPER RTL

Source: Antenne Germany

October 3, 2020

Diese Website geht online – more to follow.

1. Oktober 2020

On October 1, 2020, the law firm of Dr. Wente started its operations. However, its founder, Dr. Jürgen Wente, has been practicing law in Munich for over 30 years.

His clients include entrepreneurs and medium-sized companies from forward-looking industries, many of whom have been using his services for decades. Originally coming into contact with copyright through the software as well as film licensing business, his field of activity quickly expanded to broadcasting and broadcasting organization, i.e. on the one hand the organization of broadcasting under private law, on the other hand also the licensing of broadcasters or providers. Today, copyright and media law is still one of his main areas of work, and he has qualified as a specialist attorney for copyright and media law.

The reunification of Germany as well as the fall of the Iron Curtain extended his range of activities in the context of the privatization of formerly state-owned or nationally owned companies to the sale and purchase of companies as well as restructuring up to the aspects of insolvency law arising in the process. This experience in turn led to his being able to demonstrate his copyright expertise in the context of one of the largest insolvencies in the German media industry when it came to the question: Who owns the film rights in insolvency?

The basis of all economic activities is corporate law. If several people join forces to produce a film or a radio program, then they already form a civil law partnership or, if they seek legal advice, realize their project with the use of a corporate form that limits personal liability. Therefore, early in his career, Jürgens corporate law practice was (and still is) an essential aspect of his business when it came to the establishment of broadcasting companies or film trading and software companies. Dr. Wente completed his training as a specialist lawyer for commercial and corporate law in 2013.

Als Dr. Wente seine Tätigkeit aufnahm, waren EDV und Filmproduktion noch When Dr. Wente started his work, EDP and film production were still two very distant economic sectors. Today they have grown together. IT and media are not only mentioned in the same breath, meanwhile one without the other is already unimaginable. The interest in IT law was also fueled by in-depth IT knowledge, because one thing was clear to Dr. Wente from the very beginning: a lawyer cannot provide sound legal advice if he has not really internalized the life issues at stake. This insight continues to shape his legal consulting practice to this day.