Broadcasting State Treaty and Esport Streams?

Over the past year, there has been a lot of discussion in the games industry about whether professional YouTubers or Twitch streamers may need a broadcasting license.

The topic is currently no longer so hotly debated, as the current draft of the new Interstate Broadcasting Treaty provides for major exceptions for streamers.

After that, a new section 20b should be inserted as follows:

Section 20 b Small radio broadcasting

(1) No authorisation is needed 1. Broadcasting programmes which, due to their limited journalistic and editorial design, their limited duration and frequency of distribution, their lack of involvement in a permanent broadcasting plan or for other comparable reasons, are limited in their to be important for individual and public opinion-forming, 2. radio programmes which, in any event, are offered to less than 5000 users for simultaneous reception;

3. broadcasting programs on the Internet that regularly reach less than 20,000 viewers on a monthly average [oder vorwiegend dem Vorführen und Kommentieren des Spielens eines virtuellen Spiels dienen].

The competent state media institution confirms the freedom of admission on request by means of a safety certificate.

(2) The state media institutions shall regulate the details in order to specify the freedom to be approved in accordance with paragraph 1 by statute.

(3) Radio programmes displayed exclusively on the Internet before the entry into force of the Twenty-third Broadcasting Amendment Treaty shall be deemed to be approved programmes in accordance with Paragraph 20.

This regulation is expressly intended to apply to streams that“primarily serve to present and comment on the playing of a virtual game“.

Although there is still a need for small discussions as things stand, this draft has now been approved and is likely to enter into force in May 2019, according to current status. Streamers who rate and comment on games should be out of the way, according to my current knowledge.

What is questionable, however, is what it looks like with an esport broadcast, which of course also shows a game, but usually also contains much more, namely discussions, interviews, evaluations, broadcasts from a single stage, editorial content, which is often quite a matter of broadcast schedule and hopefully will have well over 5000 users in the future.

The question may also arise as to whether the esports industry would like to rest on the exception that a broadcast would only be of minor importance for individual
and public opinion-forming after the major discussion about its assessment as a sport and its significance in society.

Admittedly, an authorisation is then quite possible, albeit with costs, but the operators must then, for example, take into account, for example, the basic requirements of the advertising right established in the RStV, namely the requirement of separation and recognition, according to which, for example, editorial Moving image content and commercial content must be clearly separated from each other. In addition, there must be no mixing of actual sent content and advertising. The latter must also be easily recognisable as such. In addition, the ban on sneaking advertising must always be observed.

In addition, the regulations of the Youth Media Protection State Treaty (JMStV) are particularly popular for the advertising industry, such as Call of Duty or Counter Strike. According to this provision, offers that endanger young people may not be disseminated or made available. In the case of development-depairing offers, care must be taken to ensure that minors of the age group concerned do not normally perceive them. In unencrypted television and telemedia, therefore, the standardised transmission time limits of the JMStV apply.

In addition, the relationship between the USK marking of the video game and the age limit regulations of the JMStV is unclear when it comes to age classification. There is much to suggest that the USK marking should not be used, but that an independent evaluation of the new report produced by the moderated stream and the compilations should be carried out, since the filmed events are only passively and the lack of interactivity does not have the same effect as the play itself.

Whether the authorities, the courts or the admissions commission see it that way remains to be seen. So far, the currently largest legal commentary is still silent on this.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.