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Fighting back against the criminalisation of German whistleblowers

People attend a special event at the German parliament Bundestag in Berlin, 13 November 2016
People attend a special event at the German parliament Bundestag in Berlin, 13 November 2016

AP Photo/Markus Schreiber

This statement was originally published on rsf.org on 19 January 2017.

An alliance of German civil rights organizations, journalists and bloggers has lodged a constitutional appeal against a new anti-whistleblower provision in the German Penal Code. The recently introduced statuary offence of “data fencing” (section 202d of the Penal Code) penalizes the handling of leaked data without ensuring adequate protection for the media. The law thereby criminalizes an important part of the work of investigative journalists and bloggers, as well as of their sources and of experts assisting in their investigations.

The constitutional appeal was lodged jointly by Reporters Without Borders (RSF) Germany, the Society for Civil Rights (Gesellschaft für Freiheitsrechte, GFF), the netzpolitik.org online journal, as well as by seven journalists and bloggers. These include Peter Hornung of NDR radio, who coordinated the ARD public radio network's coverage of the “Panama Papers” scandal, and Hajo Seppelt, a freelancer for Germany's public ARD TV network whose investigations were crucial in uncovering Russia's systematic doping ahead of the Rio Olympic Games. Further complainants include a judge, a lawyer and an IT expert, all of whom provide advice to investigative journalists on a regular basis.


A legal minefield for investigative journalists and their helpers

“The data fencing provision opens a legal loophole enabling police searches of editorial offices that have been ruled unconstitutional for good reason with regard to other laws”, said GFF chairman Ulf Buermeyer.

“Rather than undermining of press freedom by creating new criminal offences such as data fencing, we should have more freedoms for the media including for bloggers and for decentrally working editorial teams,” said netzpolitik.org's editor in chief Markus Beckedahl.

“If even a well-established democracy such as Germany criminalizes the work of journalists and their helpers simply because it includes handling leaked data, it provides a disastrous precedent internationally,”said Christian Mihr, executive director of RSF Germany.

The constitutional appeal was written by Katharina de la Durantaye of Berlin's Humboldt University, the Cologne-based criminal defense lawyer Nikolaos Gazeas and Sebastian J. Golla of Mainz University.


Press freedom must apply equally for bloggers, citizen journalists and assistants

The complainants hope that the Federal Constitutional Court will declare the “data fencing” provision void. That way the complainants, and with them all journalists in Germany, would be protected from criminal prosecution, and more pressingly from police and prosecutors' measures such as office searches and the confiscation of investigation material. The constitutional appeal also aims to avert the “chilling effect” of the law that may potentially scare off whistleblowers and other sources from collaborating with investigative journalists.

The complainants further hope to obtain from the Constitutional Court a timely interpretation of press privilege – one that should expressly include new forms of journalism such as blogging, and should include in legal protections those who assist journalists in their professional tasks, such as legal or IT experts. A clear ruling in this regard would send an important message internationally in the face of efforts by dictatorships and authoritarian regimes to exclude bloggers and citizen journalists from press freedom protections: Such governments often insist on a narrow definition of journalism in order to control the flow of news and information more easily.


Up to three years' imprisonment for handling illegally obtained data

The new criminal offence came into force on 18 December 2015, two months after being passed by the Bundestag (German federal parliament) without debate and well-hidden in a legislative package re-introducing bulk data retention powers for telecommunications metadata. The complaint was financed by netzpolitik.org, RSF Germany and the GFF, and was filed with the Federal Constitutional Court on 16 December 2016.

The provision on data fencing penalizes the handling of data that was obtained by illegal means. Journalists could thus face up to three years of imprisonment or a fine. Adding to this is a supplement in section 97 of the Code of Criminal Procedure, establishing an exemption from the confiscation ban related to the reporter's privilege, or the right of refusal to give evidence in court. This new exemption already applies in cases of suspected data fencing, thus opening a legal backdoor to allow searches of editorial offices and the seizing of potential evidence found there.


Inadequate protection for journalists' sources and helpers

By penalizing the handling of leaked data in principle, the new penal provision curtails the freedom of journalistic investigation in a disproportionate manner. The only exemptions included in the law are actions “exclusively serving lawful professional duties”, defined to cover in particular the actions of “occupational” (i.e. professional) journalists.

These exemptions are in effect incomplete even for traditional journalists, as they do not include activities related to, for instance, side jobs or investigations initially started out of private interest. Even more inadequate are the protections for external experts such as lawyers or IT-specialists who often provide crucial assistance to journalists by helping them examine and evaluate leaked data.

The main threat emanating from the data fencing ban, however, are not so much actual criminal convictions of journalists, but rather criminal investigations and police searches of editorial offices. Such actions by the authorities, for which the legal threshold is relatively low, would undermine the trust between journalists and their sources, thereby effectively weakening journalists' possibilities for investigative research.

Had the statutory offence of data fencing already been in place during recent major journalistic investigations such as those into the Panama Papers or into Russia's systematic state-sponsored doping, some of the complainants' actions probably would have been classified as criminal offences. Hence they are claiming, in the constitutional appeal, violations of a number of their constitutional rights, including freedom of the press and of broadcasting, freedom of occupation, the constitutional principle of equality before the law and the principle of certainty in penal law.

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