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Fwd: [Internet Policy] German court: livestreaming = broadcasting, needs license

Broadcasters on the list,

What are your thoughts in the Kenyan context ?

———- Forwarded message ———
From: Joly MacFie via InternetPolicy <internetpolicy@elists.isoc.org>

Subject: [Internet Policy] German court: livestreaming = broadcasting,
needs license
To: internetpolicy@elists.isoc.org <InternetPolicy@elists.isoc.org>

Source: Columbia Global Freedom of Expression –
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.

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