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Freedom of the Press being strengthened - Germany 2010

Background

1. The Cicero Ruling

In 2005 the political magazine Cicero published an article on the terrorist Abu Musab al Zarqawi in which substantial passages of a top secret report of the Federal Criminal Police Office (BKA) were cited.
The state prosecutor started an investigation against the journalist and the local court (1) issued a warrant allowing searches of the Cicero offices. Thereby (2) confiscating a computer hard disk, (3) of which a copy was made. Following this action,
  (4) Cicero lodged a protest against the confiscation (2) arguing that it violated the freedom of the press as guaranteed by the constitution,
  (5) the local court dismissed the protest, arguing that no violation had occurred,
  (6) the local court issued an order to justify the confiscation of the hard disk (after the event),
  (7) Cicero lodged a protest against the decision (5),
  (8) the State Criminal Police Office (LKA) deleted its copy of the hard disk (3),
  (9) the local court dismissed the protest (7) on the grounds that the deletion made the protest superfluous,
  (10) Cicero lodged protest against the court decisions (5) and (9).

In February 2007 the Federal Constitutional Court repealed all decisions of the subordinate courts (1), (5), (6), (9) as being unconstitutional, stating that the search warrant represented a serious breach of the constitutionally guaranteed freedom of the press.

Conclusions:
a) A jounalist who receives an official restricted document and cites from it can only be indicted if he had actively worked in collusion with an official in obtaining that document. Otherwise only the responsible official can be made guilty of an offence.
b) This is one of several examples that demonstrate how quickly democratic rights crumble in the absence of an independent third pillar next to the legislative and the executive.

2. Investigation against 17 journalists

In 2007 an investigation was started against 17 journalists (from TAZ, Spiegel, Frankfurter Rundschau, Zeit, Welt, Süddeutsche Zeitung, TV/Tagesspiegel) with the charge of "aiding and abeting a breach of official secrecy".

A parliamentary commission was investigating the role of the german secret service (BND) during the last Irak war. Commission members complained that the press was publishing secret material even before it was available to the commission*. The breach of security concerned the interest of the journalists in the offer by the CIA to free the german-born turkish national Murat Kurnatz, and (as confirmed by the secret material made public by the press articles) the attempts by the foreign and interior ministries to prevent Kurnatz's return.

The outward justification of the state prosecutor for investigating the journalists was the suspicion that the journalists had worked together with the officials supplying the secret documents.
A more plausible explanation is that the prosecutor wanted to find the information leak, and searching the offices of the newspapers' offices was a convenient way to achieve this. Needless to say, criticism abounded, especially in the face of the Cicero case.

*) In part this was due to the interior ministry delaying the release of material.

Draft new law on freedom of the press

As consequence of the Cicero ruling of the Constitutional Court of 2007, the government is currently (first half 2010) working on a draft new law that aims to better protect journalists (and implicitly informants) from actions by the state prosecutor. In future the prosecutor cannot so easily use a generally possible collusion between journalist and informant as excuse to search offices of the public media. Hopefully.

Sources [german]:

[1] wiki "Cicero-Urteil"

[2] wikinews "Ermittlungen gegen 17 Journalisten wegen Beihilfe zum Geheimnisverrat: Angriff auf Pressefreiheit?", 09.08.2010

[3] SZ "Stärkung der Pressefreiheit Von wegen Geheimnisverrat", 03.04.2010