Press freedom organisations have welcomed a German Constitutional Court ruling that journalists cannot be accused of betrayal of state secrets for publishing classified information obtained from informers.
Germany’s highest court ruled Tuesday that authorities violated press freedom in ordering a raid on the offices of a magazine that cited classified information in an article about the late leader of al-Qaida in Iraq, Abu Musab al-Zarqawi.
The offices of the monthly were searched on September 12, 2005 as investigators attempted to pinpoint the source of a leak of confidential papers from Germany’s Federal Crime Office on the financing of Islamic extremists.
’s chief editor, Wolfram Weimer, complained to the Federal Constitutional Court, which ruled Tuesday that the raid was an “unjustified intrusion on the press freedom of the plaintiff.” The court ruled that, to justify such a raid, “specific actual indications of an intended publication of secrets by a bearer of secrets” would be required, and there was no such indication in the case, the Associated Press (AP) reported.
“After a year of depressing interventions against journalists’ rights, this is good news for press freedom in Europe and beyond,” said European Federation of Journalists (EFJ) Chair Arne König. “This judgment makes state interference in journalism more difficult and strikes a blow for ethical and quality reporting everywhere.”
“We welcome this decision,” Reporters sans Frontières (RSF) said. “Journalists who use information passed to them by their sources should not be prosecuted, otherwise they cannot to fulfill the role they are meant to play in a democracy, which is to seek out information and to question governments.”
According to the ruling, publishing a secret in the press does not necessarily mean that someone betrayed secrets, the AP report said. It mentioned the possibility of them being accidentally leaked or leaked by someone who has no obligation to respect confidentiality. After the raid, during which the hard disk of a computer was copied, prosecutors sought to have two journalists put on trial as accessories to divulging secrets. A Potsdam court threw out the charges last year, citing lack of sufficient evidence.
Weimer welcomed Tuesday’s ruling by the federal court, which a panel of judges reached by a 7-1 margin, as “a decision in favour of press freedom in Germany.”
The raid on was staunchly defended by Germany’s Interior Minister at the time, Otto Schily. He argued at a parliamentary hearing in late 2005 that the state could not accept confidential investigation documents becoming public.
The subject of the April 2005 article, al-Zarqawi, died in a US airstrike in Iraq last year. As author Bruno Schirra reported his story, he cited information from a classified document which he obtained from a source within the Federal Criminal Police Office, or “BKA.” Schily believed that was a major breach of security.
“The government simply cannot accept that documents from its innermost circles are passed on to the public by officers, because that creates dangers for such operations,” Schily said, according to Deutsche Welle.
“Journalists are neither microphone-holders nor the king’s scribes: they are there to bring unpleasant truths to light, whether the powerful like it or not, and Otto Schily is no exception,” Weimar retorted.
For many Germans, the affair has raised the specter of the Spiegel scandal that began in 1962. Back then, the weekly newsmagazine Der Spiegel was accused of treason for an article criticizing the German Armed Forces. Defence Minister Franz Josef Strauß had the Spiegel offices searched and occupied by police, and Spiegel’s editor-in-chief, publisher and the author of the article arrested. The scandal ended with Strauß’s resignation and a victory for press freedom, Deutsche Welle recollected.
The centre-left daily Süddeutsche Zeitung wrote, “Following this decision, the legal situation in Germany will be like that in Switzerland, where journalists who refuse to identify their sources are protected from legal persecution. Germany’s highest court has ensured that investigative journalism can no longer be automatically regarded as instigating or abetting the betrayal of state secrets, as has often been the case in the past. Of course, the verdict is not intended as a privilege allowing journalists to practise their profession more easily, but is rather a contribution to the proper functioning of democracy. A democracy in which scandals are swept under the carpet is not a good democracy.”
Over the past year, the International Federation of Journalists (IFJ) and EFJ have protested strongly over attacks on journalists’ rights — particularly the cardinal principle of protection of sources —by authorities in Italy, Germany, Denmark and the Netherlands. A series of scandals have followed arrests, unauthorised telephone tapping, and controversial prosecution of journalists, which led EFJ to protest directly to the European Parliament and the European Union, calling for action to protect journalists from official pressure.
“At last we have some recognition that protection of sources and the journalists’ right to report free of official intimidation needs fresh protection,” said König. “We hope now to see a change of mood within the police and security agencies, not just in Germany, that will put an end to the widespread pressure that has been put upon investigative journalism across the region.”
In December 2006, three journalists were acquitted in a controversial Danish case over press rights. At the time IFJ and EFJ said the decision should signal a Europewide fightback against governmental and official pressure on journalists in a number of European Union countries in 2006.
In late November 2006, two journalists were briefly jailed in the Netherlands when they refused to name their sources in a case against an agent suspected of leaking secret dossiers from the Dutch intelligence service to the underworld. Earlier in the year, the Dutch government said it would stop its surveillance of journalist communications and the German government said it would remove spies that it had placed in newsrooms to stop leaks to the press. In the UK, the government has said it is planning to strengthen official secrecy laws to prevent whistleblowers from revealing information about government policy. Latvia, Ireland and Italy also saw actions last year, both legal and illegal, by officials trying to discover who journalists were talking to.
