Report on the IMKR Lecture “Corporate and Antitrust Law Practice in Corporate Transactions in the Television Sector” by Dr. Vedder
On December 5, 2018, Prof. Rösler welcomed Dr. Caroline Vedder, in-house counsel and deputy head of the Business & Legal Affairs division at Mediengruppe RTL, to Siegen for a glimpse into her work at RTL. One of the first major transactions Vedder handled at the media group was the acquisition of nearly 50% of the shares in the news channel n-tv in 2002–2003. The remaining shares were primarily held by the U.S.-based CNN Inc. Vedder reported that the Federal Cartel Office (BKartA) had no antitrust concerns at the time. A few years later, the situation changed when CNN sought to divest its shares and the media group set out to acquire n-tv in its entirety. Given that the news channel would not have been able to survive without the takeover, Germany’s top competition regulators in Bonn were ultimately persuaded to approve the acquisition (BKartA, decision of April 11, 2006, Ref. No. B6-142/05 – n-tv).
In 2011, Vedder assisted with the merger control and antitrust proceedings regarding the review of a joint venture intended to develop a video-on-demand platform in collaboration with ProSiebenSat.1. The aim was to counteract the looming dominance of U.S. streaming providers on the Internet. The concept behind the platform was to make TV content from German broadcasters available online for one week after it aired (a so-called “seven-day catch-up” service). As on TV, each broadcaster was to be able to sell its own advertising, and the platform was also to be made available to broadcasters other than those participating in the joint venture. However, the Federal Cartel Office (BKartA) saw the project as posing a risk of strengthening the dominant market position of RTL and ProSiebenSat.1 in the television advertising market and prohibited it pursuant to § 36 of the Act against Restraints of Competition (GWB) (BKartA, decision of March 17, 2011, Case No. B6-94/10 – Amazonas, summarized in Dubberstein, NZKart 2013, 143, upheld by the Higher Regional Court of Düsseldorf, decision of August 8, 2012, Case No. VI-Kart 4/11 (V)). A similar joint project by the public broadcasters ARD and ZDF was discontinued in 2013 after the BKartA, while approving it under merger control law, had announced its conditions for approval under antitrust law (Federal Cartel Office, decision of February 18, 2014, Case No. B6-81/11 – “Germany’s Gold”). According to Vedder, these decisions have led to Netflix and Amazon now being unchallenged in the streaming market in Germany as well.
Vedder also discussed the regulation of online platforms (here, Vedder pointed out that Mediengruppe RTL advocates, from a media policy perspective, for the equal treatment of internet and TV offerings), convergence and strategic diversification within media companies, as well as the internationalization of content distribution. Regarding the last point, Vedder noted that language barriers and cultural differences create clear boundaries that can only be broken in exceptional cases (a famous example from her own company: the hit series “Alarm für Cobra 11”). Vedder considers the special antitrust laws governing the media sector to be entirely reasonable given their historical context, but insists on equal rights and obligations for similar offerings.
In conclusion, Vedder looked to the future of the television advertising market: Given the significantly increased level of targeting, yet simultaneously lower reach of online advertising – while ads can be precisely tailored to individual viewer target groups, they also reach only a single viewer target group – and given the forecast that the use of linear television will continue to decline over the next ten years but will certainly not disappear entirely – she expects only a slow (initial) decline in TV advertising revenue.
Further reading (in German): Rösler, Kartellrecht im Mediensektor – Strukturen und Perspektiven, WuW 2009, 1014, and Rösler, Medienwirtschaftsrecht: Wettbewerb auf privaten Medienmärkten und die Funktion des öffentlich-rechtlichen Rundfunks, JZ 2009, 438.
The lecture was also part of the series “Business Law in Corporate Practice” (WIR-UP).
