Germany

[DE] Decision on Split-Screen Advertising Upheld

IRIS 1999-6:1/11

Wolfram Schnur

Institute of European Media Law (EMR), Saarbrücken/Brussels

In a judgement delivered on 1 April 1999, the Higher Administrative Court ( Oberverwaltungsgericht OVG ) in Berlin dismissed the appeal of the Berlin-Brandenburg media authority against the decision of the Berlin Administrative Court ( Verwaltungsgericht VG ) of 17 December 1998.

In its decision, the VG Berlin had held the practice followed by the television broadcaster n-tv, using a crawling display simultaneously with the normal picture for advertising purposes, to be admissible (see IRIS 1999-2:6). In its judgement, the OVG agreed with the court of first instance that the crawling text, as a "comparable text service" was subject solely to the regulations set out in para 2 no.3 of the Agreement between the Federal States on Media Services ( Mediendienste-Staatsvertrag - MDStV ). In the OVG's opinion, this conclusion did not contradict the first structural paper on the powers of the Land media authorities in the grey area between broadcasting and media services, nor did it contradict - regarding the distinction between the two - a paper adopted on 16 December 1997 but which has no legal force (see IRIS 1999-1:12 and IRIS 1998-7:15). This was due to the fact that, in the view of the 8th Chamber of the OVG , a textual advertisement, according to this paper, was only subject to broadcasting law if there was a connection with the actual pictures on the screen. In this case, however, the court did not find there to be such a connection.