Media Policy

When may the State keep information back to protect itself and its citizens? When must the press investigate – and when forbear? In their latest ruling on the Cicero case the highest German judges champion freedom of the press.

The chronicle of a conflict

In April 2005 Cicero magazine ran a story on Al-Qaeda terrorist leader Zarqawi. The author, Bruno Schirra, used "classified information" (Verschlusssache) from a Federal Criminal Police Office (Bundeskriminalamt, or BKA for short) report. Verschlusssache is the BKA's lowest secrecy classification and it seems 200-odd employees had access to the dossier in question. Who leaked the document remains unknown to this day. In September 2005 the BKA tried to find out by searching the magazine's offices and the author's flat. With authorization from two courts in Brandenburg, they seized data carriers and copied a computer hard disc. Then in February 2006 the public prosecutor's office dropped the investigation of Cicero's editor-in-chief Wolfram Weimer, but the Potsdam Regional Court ruled that same month that the search was legal. And in July 2006 the same court refused to try the author, Schirra. His editor Weimer lodged a complaint about the investigation with the Federal Constitutional Court, and in February 2007 the Karlsruhe justices pronounced the investigation unconstitutional.

Controversy, codes and core issues

Cicero

At the national press convention in 2005, interior minister at the time Otto Schily defended the investigation: "Of course this isn't about curtailing the watchdog function of the press. But when it comes to publishing police files, which may well jeopardize an investigation and from which those under investigation may glean some information, we can't accept the damage that's going to cause." Nearly the entire German press disagreed and joined Cicero in condemning the government's actions as an "attack on the freedom of the press". As Die ZEIT points out, however, "So the terrorists among the readers of the article get a peek at the BKA's cards. Schirra's article does not criticize the BKA's actions, nor does it reveal any scandals, let alone illegal activity by German authorities." Die ZEIT cites section 95 of the German Penal Code, which makes it a crime to deliberately let unauthorized persons in on State secrets, and concludes that "the official in question is guilty of betraying a State secret and Schirra participated, which may make him an accessory."

Der Tagesspiegel cites other sections and mechanisms that make it easy for the State to keep tabs on the press: "In recent years, government officials, but also parliamentary fact-finding committees, have made a habit of stamping files and documents ‘V' for ‘Verschlusssache', meaning secret. If ‘Verschlusssachen' are leaked by one person and published by another, the first is guilty of disclosing secrets, the second of aiding and abetting the same. That's what it says in section 353b of the Penal Code. So next thing you knew the prosecutors were standing on the doorstep of the newsroom. The law became a tool: not for preventing secrets from being disclosed, but for intimidation."

The Deutsche Welle writes: "House searches and seizures like the one at Cicero have increased in recent years. The German Journalists Association reports 187 cases since 1987. The charge is always ‘inciting or participating in the disclosure of secrets.' This line of attack intimidates and deters the press."

Reporters Without Borders are also alive to this threat to freedom of the press: in their latest Worldwide Press Freedom Index, what with German reporters being observed by the Bundesnachrichtendienst [Federal Intelligence Agency] and the Cicero case, Germany has slid down in the ranking from class 18 to 23, which it shares with Jamaica and Benin.

The judgment: German Constitutional Court champions press freedom

"Searches and seizures in investigations of members of the press are unconstitutional if their sole or chief purpose is to ascertain the identity of an informant," pronounced presiding judge Hans-Jürgen Papier. Nor is it justified to search newsroom offices solely on the grounds that official secrets have been published in the media, ruled the court – and the German press exulted. The Süddeutsche Zeitung lauded the decision thus: "The judges do not confine themselves to stressing the importance of press confidentiality in general. They enjoin the police, prosecutors and courts to interpret the norms of penal and security laws in the light of freedom of the press. The highest German court has ensured that investigative journalism can no longer, as so often in the past, be quasi-automatically equated with inciting or aiding and abetting the disclosure of secrets."

The aftermath

Many in the media have made their case with more polemics than legal expertise – and prevailed nonetheless. Everyone applauds the decision, but some would agree with Die Welt: "It's unsettling that Karlsruhe has to issue admonitions time and again to remind the authorities and lawgivers of the primacy of our basic liberties." Hence the plea from Reporters Without Borders: "Journalists to whom material is leaked and who use that material must not be criminalized. Journalists must therefore be exempted from section 353b of the Penal Code, which makes aiding and abetting the disclosure of secrets a punishable offence." Die ZEIT joins media management professor Johannes Ludwig in his call for journalistic discretion: "Journalists should never show off in their articles with secret information, but handle it very discreetly with a view to protecting their sources. Any charge of abetment against the journalist must be based not on mere suspicion, but on strong suspicion. Searches and seizures must only be allowed in cases of urgency or emergency and must never get out of hand."

The highest judges in the land took much the same view, and the federal government now intends to bring the rules protecting sources into line with this judgment.