Germany: Press freedom law to protect journalists after raids
01 January 2006
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).
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