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5 September 20223 minute read

DLA Piper represents ProSieben before the Higher Administrative Court of Berlin Brandenburg in youth protection case

DLA Piper has successfully represented Seven.One Entertainment Group GmbH before the Higher Administrative Court of Berlin-Brandenburg (OVG Berlin-Brandenburg) again. The current proceedings involved an objection to a TV show about movies called "Steven liebt Kino". The media authority Medienanstalt Berlin-Brandenburg (mabb) considered the broadcast to be an alleged violation of the provisions of the Interstate Treaty on the Protection of Minors in the Media (JMStV). This was determined by the Commission for the Protection of Minors in the Media (KJM), the body responsible at mabb, on the basis of a draft resolution submitted by mabb. The Voluntary Self-Regulation Body for Television (FSF) came to a different evaluation. It cleared the program for the 12+ age group and daytime programming after it was broadcast, but before the KJM decision.

The objection to the broadcast by mabb had already been overturned in the first instance by the Berlin Administrative Court (VG Berlin). The VG Berlin had found that there had been a violation of the obligation to state reasons under Section 17 (1) sentences 3 and 4 JMStV. The KJM had adopted mabb's draft resolution in a slightly modified form, with neither the reference being sufficiently specific nor the reasoning behind mabb's draft resolution itself being free of contradictions. In this context, the VG Berlin had emphasized that the obligation to provide reasons was not merely a desirable procedure, but also served to protect the position of the affected broadcasters and telemedia providers under fundamental rights. If such a statement of reasons is missing or does not meet the legal requirements, this affects the legality of the decision of the state media authority and is a procedural error. The existence of a statement of reasons originating from the decision-making body (in this case the KJM) is essential for the validity of a supervisory measure issued by the respective state media authority according to the JMStV.

The attempt of the mabb to overturn these findings in the appeal proceedings was unsuccessful. The OVG Berlin-Brandenburg rejected mabb's application for leave to appeal, making the decision of the VG Berlin legally binding. The OVG Berlin-Brandenburg left the factual and legal findings of the VG Berlin unchallenged and thus strengthened the importance of the obligation to give reasons and the rights of media providers. In addition, it emphasizes that the decisions of the KJM are also binding for the other bodies of the state media authority and must be used as a basis for their decisions. This results in the dependence of the decision of the state media authority on the decision of the KJM and its justification.

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

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