Update: Media law - Gerald Ganzger in Horizont

Update: Medienrecht - Gerald Ganzger im Horizont

Sind Print und TV rechtlich gesehen Konkurrenten?

Update: Medienrecht - Gerald Ganzger im Horizont

In an advertisement, an Austrian news channel claimed, among other things, that it was "number one in news". From a legal point of view, such a statement is a top position advertisement which, according to the established case law of the Supreme Court (OGH), is only permissible if "the company or product in question is so obviously and so considerably superior to its competition that this top position appears to be largely independent of all foreseeable competition-related fluctuations for a longer period of time". 

If such an advertising claim does not meet these criteria, it is unlawfully misleading and competitors can take legal action against it under the provisions of the Unfair Competition Act (UWG). In fact, a UWG action was brought against this advertising claim, but not by another TV station, but by an Austrian daily newspaper. The courts thus had to deal with the question of whether a competitive relationship existed between a daily newspaper and a news television station, which would legitimise the daily newspaper for a lawsuit under the UWG. 

Up to the last instance, the courts have affirmed a competitive relationship between the daily newspaper and the TV station. The Supreme Court stated, among other things: "A competitive relationship will primarily be assumed in the case of such entrepreneurs who address an essentially identical circle of customers. It is therefore not the equality or similarity of the goods or services sold by them that is important, but above all the equality of the clientele." If entrepreneurs from different sectors try to attract the same clientele, they are also in competition with each other. Both daily newspapers and television stations turn to the advertising industry to acquire paid advertisements. In addition, print and television address an overlapping circle of viewers/readers. 

The daily newspaper was therefore not only actually entitled to sue, but also won the case. The TV station could not prove that it was actually number one in news. It was also of no use to the TV station that it still argued that the advertising statement was only "a mere puffery exaggeration". The courts assumed that it was a serious advertising claim, the accuracy of which the TV station could not prove.