23 April 2020
Live streaming has developed into a popular communication medium and distribution model in recent years. However, it has probably never been more popular and widespread than today when possibilities of direct communication are dwindling due to Corona pandemic control measures and, at the same time, technical possibilities of live streaming are easily accessible and inexpensive to use. In addition to many new cultural and entertainment formats from public and private users, e.g. in the form of "home concerts", broadcasted live via YouTube, Twitch, Instagram, Periscope, Facebook and Co., many companies have also discovered the possibility of using live streaming for promoting their commercial offers. Live fitness courses, training events, concerts and readings are just a few examples.
Only few people are aware that live streaming offers provided by simultaneous reception by a large number of users (i.e., not for individual viewing at any time) may raise broadcasting law issues, especially with regard to the licensing requirements under broadcasting law. According to the German Interstate Broadcasting Treaty, private broadcasters require a licence for the provision of broadcasting services, which they must apply for with the competent State Media Authorities. In addition, such providers are also subject to the rules of the Interstate Broadcasting Treaty, for example, the rules on labelling of advertisement and the separation of editorial and advertising content, which must also be observed.
The definition of “broadcasting” is broad: According to the Interstate Broadcasting Treaty, broadcasting is any linear information and communication service and thus the provision and distribution of offers in moving image or sound along a broadcasting schedule using electromagnetic oscillations, intended for the general public and for simultaneous reception. How many people actually access the stream is irrelevant. It only depends on how many people could potentially take advantage of the respective offer. Consequently, the characteristics of shaping of public opinion and the distribution along a fixed broadcasting schedule are decisive for the assessment whether a specific live stream is to be classified as "broadcasting". Providers of live streams should therefore bear in mind that an editorial design of the content with simultaneous regular broadcasting can quickly make the respective offer “broadcasting” according to the law. The Interstate Broadcasting Treaty allows exceptions only in "minor cases" – e.g. for offers with fewer than 500 potential users or without journalistic/editorial design. Even the moderation of cultural events can lead to editorial/journalistic content. Offers for closed user groups of less than 500 users, on the other hand, do not fall under the approval requirement. A helpful checklist of the State Media Authorities for streaming requiring approval can be found on their website.
The Directors' Conference of the State Media Authorities, which are the competent authorities to grant broadcasting licences for nationwide broadcasting in Germany, agreed on a pragmatic approach to live streaming of cultural or religious events as well as educational formats during the period of the Corona crisis "to maintain social participation". At present, broadcasters of at least "broadcast-related" offerings are only required to notify the respective competent State Media Authority; they are no longer dependent on approval. This simplified procedure has just been extended until 31 August 2020.
Irrespective of the licensing (or currently notification) obligation under broadcasting law, every provider must also deal with all other applicable media law and advertising regulations in order to avoid e.g. inadmissible surreptitious advertising or being prosecuted for missing mandatory information or lack of protection of minors. Special attention should also be paid to copyright protection. Providers should ask themselves: Do I have the necessary rights for, amongst others, background music, performed music or performances? It may be necessary to conclude user agreements with GEMA or other collecting societies and rights owners.
Many commercial live streaming offers are not subject to licensing requirements because they are only aimed at limited user groups or are individual events which do not follow a fixed broadcasting schedule. Nevertheless, it is advisable to check whether it is necessary to make at least a notification to the State Media Authorities.
The licensing obligation of broadcasting in its current form is repeatedly criticized. Currently the federal states are working on a new State Media Treaty which will replace the Interstate Broadcasting Treaty. In its rulings on broadcasting, the Federal Constitutional Court emphasizes the special relevance of broadcasting for the formation of public opinion because of its broad impact (as a mass medium), its topicality (through the possibility of live reports) and the suggestive power of moving images - and thus supports existing licensing requirements. However, linking the regulation of online media to the characteristic of linearity can be considered as unconvincing as on-demand videos of public figures today often reach an audience of millions of people.
Although the background to the new treaty is the digital change through new offers on the Internet, the planned State Media Treaty will not change the legal situation: The draft version passed on 5 December 2019 retains the prerequisite of linearity. The treaty only extends the exceptions for trivial broadcasting programs and removes the obligation to obtain a license if a program is only of minor importance for the formation of public opinion or if it reaches or is likely to reach less than 20,000 simultaneous users on average over a period of six months.
The new State Media Treaty is not yet in force as its adoption requires the approval of all state parliaments, which is not yet granted. However, it is not to be expected that the prime ministers of all German states, who are responsible for the draft in its current version, will be induced to rethink the draft due to the Corona crisis. In the future, providers of live streams will therefore still have to take a closer look at the broadcasting law requirements for their programs.
We have compiled on our website comprehensive information and recommendations for action in response to the legal implications arising from the coronavirus pandemic: Coronavirus - legal issues