Bavarian Administrative Court of Appeal: Media Agency does not have to ban advertisement for private sports betting

Rechtsanwalt Martin Arendts, M.B.L.-HSG

Arendts Rechtsanwälte
Perlacher Str. 68
D - 82031 Grünwald (bei München)
The Bavarian Administrative Court of Appeal (Bayerischer Verwaltungsgerichtshof) decided that it is illegal for the Bavarian Ministry of Science, Research and Art to order the Bavarian Agency for New Media (Bayerische Landeszentrale für neue Medien) to ban advertisement for private sports betting with regard to the channels it supervises (decision of 9 January 2007, case-no. 7 CS 06.2495). The Court affirmed the decision of the Administrative Court of Munich and dismissed the complaint of the Ministry of Research.

The Ministry’s action was caused by a commercial of the sports betting operator betandwin (now: bwin). The Ministry of Research had therefore ordered the Agency for New Media to immediately ban the transmission of advertisement for non-state sports betting offers immediately. It argued that private sports betting was in violation of Art. 284 par. 1 German Criminal Code (illegal gambling) in connection with Art. 2 par. 4 Bavarian State Lottery Act. The Agency for New Media resisted. For an intervention on the basis of media law, it argued, the preliminary question, whether the offered bet was really illegal, had to be clarified first. The Agency for New Media filed suit and a petition for temporary relief.

In its decision of 8 August 2006 (case-no. M 17 S 06.2945), the Administrative Court of Munich granted the Agency temporary relief against the instruction to immediate comply with the order. The Administrative Court of Appeal affirmed this decision and explicated that under the Bavarian Media Act (Bayerisches Mediengesetz) measures of supervision with regard to “programme matters” were barred. Commercial advertisement was part of the respective programme and therefore was counted amongst such “programme matters”. Therefore, the absolute exclusion of measures of legal supervision had to be applied to advertisement as well. The Bavarian legislator did not make a difference between more constitutionally protected media coverage and less protected media elements such as advertisement. For the rest, the legal situation with regard to nationwide online advertisement for regionally licensed sports betting was not clear. With respect to the Community law questions to be clarified, one had to await the concluding decision of the European Court of Justice.