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1 June 20223 minute read

DLA Piper successfully defends "Galileo" for ProSieben at the Higher Administrative Court of Berlin-Brandenburg

DLA Piper has successfully represented Seven.One Entertainment Group GmbH in an appeal before the Higher Administrative Court of Berlin-Brandenburg (OVG Berlin-Brandenburg). Specifically, the case was about a report of the show "Galileo" in the program of the TV channel ProSieben. This report showed and explained what happens when a tongue is held against an icy metal bar. The media authority Medienanstalt Berlin-Brandenburg (mabb) considered the content to be potentially harmful to children's development. This was determined by the Commission for the Protection of Minors in the Media (KJM), the body responsible at mabb, after viewing the program.

The subsequent objection to the program's distribution by mabb had already been overturned by the Administrative Court in the first instance, as it was not possible to establish that the KJM had reviewed the program. However, this is a mandatory requirement that must be met and proven by the media authority in order to object to an offering under youth media protection law. The Administrative Court considered mabb's request for alternative evidence, namely that the members of the KJM had been questioned in order to prove that the content had been viewed, to be inadmissible as evidence of investigation, and pointed out that the media authority would have to know whether the KJM had viewed the content, especially since the members of the KJM are obligated to disclose information to it.

The mabb's attempt to overturn these findings in the appeal proceedings was unsuccessful. The OVG Berlin-Brandenburg rejected mabb's application for leave to appeal. No reasons had been presented that would require a review of the first-instance decision in appeal proceedings. The OVG Berlin-Brandenburg stated, in agreement with the lower court, that there was no sufficient evidence of viewing and confirmed that, in this respect, it is at least necessary for the media authority to explain "when and where a viewing of the contribution" by the respective KJM members is supposed to have taken place.

The decision of the Berlin-Brandenburg Higher Administrative Court now confirms for the first time that the review by the KJM and its presentation or proof is not a formalistic triviality, but has a function relevant to fundamental rights. Compliance with the justifiably strict procedural requirements is all the more relevant because the KJM's evaluation has the procedural quality of an expert statement, which the broadcaster can only shake under narrow conditions.

The DLA Piper team led by partner Dr Michael Stulz-Herrnstadt included counsel Christoph Engelmann and senior associate Fabian Jeschke (all Public Commercial Law / Media Law, Hamburg).

The dispute was handled in-house by Jürgen Harling (Legal Director Media Law / Legal Affairs Entertainment).