28 March 2012
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Germany
Press freedom law to protect journalists after raids
German intelligence and law enforcement agencies have had a tough year. First it was revealed that the secret service Bundesnachrichtendienst - BND) had put journalists and scientists under observation in the 1990s, and then its involvement in CIA renditions became public. The Federal Crime Police Authority (Bundeskriminalamt - BKA) did not fare much better. It was severely criticised for raiding press offices and a journalist's home last September in an attempt to find the source of leak in its ranks. In January this year, a BKA employee admitted the agency had provided question catalogues [categories] to the Lebanese secret police and deliberately ignored their use of torture against German terrorist suspects in Beirut. The infringement of press freedom and civil liberties, a casualty of the war against terrorism, has been increasingly criticised by media commentators, civil liberties groups and the German Federation of Journalists. The Green Party has now published a White Paper proposing that the obtaining of confidential information by journalists be made legal under the German Criminal Code; it also wants to increase the threshold required for law enforcement agencies to confiscate journalists' records.
In September 2005, the offices of the monthly magazine Cicero
and the houses of the journalist Bruno Schirra were searched
by police and sensitive material, including e-mail correspondence,
was confiscated. The raids were carried out on the basis of an
article that appeared in Cicero (April 2005) about the Jordanian
terrorist Abu Mussab Al Zarqawi, which had cited a classified
BKA report. The BKA wanted to find the source of the leak. Schirra's
and the editorial office's telephones were tapped and traffic
data collected prior to the raid; Schirra had also been put under
surveillance. The incident triggered widespread criticism from
civil liberties groups, press freedom organisations and MPs,
who warned of an alarming increase in the criminalisation of
investigative journalism by the state. Commentators have drawn
parallels to the 1962 Spiegel-Affaire, a well-known scandal triggered
by a raid on the offices of the weekly magazine Der Spiegel and
the attempted prosecution of its editorial board on the grounds
of treason. A constitutional challenge to the raids led to a
Federal Constitutional Court decision of August 1966, which explicitly
laid down that searches of journalists' houses and confiscation
of their material could not occur merely on the grounds of ascertaining
the identity of an informant.
Last November, the raids were followed by a new secret service
scandal, triggered by a BND whistleblower who admitted to the
investigative journalist Erich Schmidt-Eenboom, (who has written
two books on the BND), that he had him under observation for
the BND in 1994. The parliamentary control commission (Parlamentarisches
Kontrollgremium - PKG) which has the task of checking secret
service activities has demanded a special investigation into
this case. They also want to clarify further allegations that
the BND still had informants in press circles and is spying on
journalists, apparently without informing
the government of its activities.
Raids on press offices and the houses of journalists are no novelty,
according to the German Federation of Journalists (Deutscher
Journalisten Verband - DJV). They are increasingly being normalised
as part of regular criminal investigations, through the use of
s.353 of the Criminal Code (Strafgesetzbuch - StGB), abetting
or inciting the disclosure of official secrets. The prosecution
is increasingly applying this clause to journalists when they
publish documents marked "confidential" by the authorities.
Between 1987 and 2000, the trade union documented 164 cases where
journalists' houses were raided, often on grounds of suspicion
or incitement tothe 'betrayal of state secrets' (Geheimnisverrat).
Some recent cases include:
December 2003: journalist Ulrich Sander's office is searched
and hard discs confiscated. Sander is the regional chair of the
anti-fascist association set up by survivors of the Nazi regime
(Vereinigung der Verfolgten des Naziregimes - Bund der Antifaschisten
- VVN-BdA) and was accused of forgery: former Wehrmacht members
had received fake letters claiming they would have to stand trial
for war crimes. There was no evidence that Sander was involved
in the action.
June 2005: The journalist Nikolaus Brauns, who had observed a
gathering of the far-right NPD, was placed under preventative
detention. Apparently law enforcement agencies had acted on information
provided by the NPD, claiming that Brauns was allegedly planning
to call in a left-wing action group to interrupt the event.
June 2005: Munich police raided the houses of several editors
of the internet portal LabourNet, also on grounds of forgery.
September 2005: A case of the interception of telecommunications
of a journalist based in Dresden became public. He had reported
a house search against the former regional economic affairs minister
of Saxony in May 2005, of which he knew in advance. With the
justification of wanting to trace the leak within the service,
his phone was tapped. This case created outrage within media
circles and was widely condemned for violating press freedom
and endangering the confidentiality of sources.
March 2006: A case of the telephone tapping of two journalists
at the Wolfsburger Allgemeine Zeitung newspaper became public.
The Journalists' Union DJV demands a parliamentary investigation
into the case.
In the Cicero-affair, the prosecution is basing its actions on
the above-mentioned legal loophole applying s.353 StGB, under
which offices are raided and press freedom infringed when the
public prosecutor finds grounds. The principle of proportionality
can only ever be checked retrospectively. This, however, violates
s.53 of the Criminal Procedural Act (Strafprozessordnung - StPO),
which holds that journalists do not have to disclose their sources
even if information was obtained through illegal means.
It is a principle which has been confirmed on various occasions
by the German Federal Constitutional Court. The White Paper to
protect journalists from this increasing threat was put forward
by the Green party on 7 February this year (16/576). The Green
proposal argues that s.53 StPO (confidentiality of sources) is
infringed by s.353 StGB (no disclosure of official secrets) and
introduces an exception for journalists. It also points out that
the official secrets clause only makes direct citations from,
and not descriptions of information obtained through, undisclosed
documents illegal. Also, the paper foresees an exception to s.100
StPO (interception of telecommunications) for journalists and
increases the threshold for house searches by making s.97 StPO
(confiscation of personal material) subject to a judge's order
under regular criminal procedural safeguards (concrete suspicion,
etc). Material not directly relating to any criminal charges
is explicitly excluded from s.97 StPO.
The White Paper was debated in the Lower House of Parliament
(Bundestag) on 16 March and the Green proposal, together with
another proposal put forward by the liberal party FDP (Freiheitlich
Demokratische Partei Deutschlands) was referred to the relevant
committees for further amendments.
Statewatch bulletin, vol 16 no 1 (2006)
Sources
“White Paper on the protection of journalists and press
freedom in the Criminal Procedural Code” (Entwurf eines
Gesetzes zum Schutz von Journalisten und der Pressefreiheit in
Straf- und Strafprozessrecht): http://dip.bundestag.de/btd/16/005/1600576.pdf;
“Transcript of parliamentary debate on the proposed law
to protect journalists” http://dip.bundestag.de/btp/16/16025.pdf;
German Federation of Journalists press release : http://www.djv.de/aktuelles/presse/archiv/2006/01_03_06.shtml;
Background article on Cicero raids in September 2005: http://www.heise.de/tp/r4/artikel/20/20946/1.html
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