Source: Columbia Global Freedom of Expression  -  https://globalfreedomofexpression.columbia.edu/cases/bild-v-mabb/   

Germany
BILD v. Mabb
Decision Date: September 26, 2019  


The Higher Administrative Court in Berlin-Brandenburg determined that an online newspaper's live streaming of programs constituted "broadcasting" which requires a broadcasting license. After the Berlin-Brandenburg media authority had prohibited the live-streamed videos and instructed the newspaper to obtain a broadcasting license, the newspaper filed an action before the Administrative Court in Berlin against the prohibition and requested that the action be given suspensive effect under a provisional procedure. While the Administrative Court in Berlin and the Higher Administrative Court in Berlin-Brandenburg during the provisional procedure both granted the request for suspension of the prohibition, in the main procedure the Administrative Court found the programs constituted "broadcasting". The Court held that the fact that viewers of live streams had no control over the timing of when to view the programming meant that live streaming met the traditional definition of “broadcasting” and therefore required a license.  


[One might think that, as the livestreams were immediately archived, viewers do have control over when to view. But the court thought otherwise.]

In the main procedure judgment the Higher Administrative Court examined the element of broadcasting being “designed for simultaneous reception”. It held that this means that the recipient does not have any influence on the beginning of the program and no possibility to fast forward, and that this applied to BILD.de’s live streams. The fact that the live streams are available on demand afterwards does not change the general categorization that they are “designed for simultaneous reception” because BILD.de has a choice to refrain from live videos and only publish the videos on demand. BILD.de had argued that the reason for live streams is that it allows for a more authentic coverage, making its content more interesting and believable to the audience. The Court noted that the importance of simultaneous reception for BILD.de could also be seen in the commentary function which allows for a direct communication with the recipient during the live streams.