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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