Case Summary and Outcome

Germany’s Federal Constitutional Court (the Bundesverfassungsgericht) ruled that Mr. W., chief editor of political magazine CICERO, did not have to reveal the source who provided leaked documents from the German Federal Office of Criminal Investigation because Article 5.1 Grundgesetz (German Basic Law) which protects the right to freedom of the press also protects the right not to reveal sources of information. The Court reasoned that the lower courts had misjudged the importance of the fundamental right of press freedom in failing to interpret the penal code in light of Article 5.1 and, in this case, the right to freedom of the press outweighed the interest in finding the person who leaked the report.

Facts

The Complainant Mr. W is the chief editor of CICERO, a political magazine. Mr. S,  a freelance journalist, published an article in the CICERO’s April 2005 edition about the terrorist Abu Mousab al Zarqawi. The article contained details, including telephone numbers al Zarqawi was using, from an analysis report of September 6, 2004 from the Bundeskriminalamt (BKA – German Federal Office of Criminal Investigation), which was labeled “VS – nur für den Dienstgebrauch (classified information – only for official use). Moreover, the article revealed that the BKA report was partially based upon findings from foreign intelligence services.

On June 23, 2005 the BKA pressed criminal charges for suspected breach of official secrets and special duties of confidentiality under §353b of the German Criminal Code (Strafgesetzbuch or StGB). Internal investigations showed that 192 employees of the BKA had access to the report.

On August 31, 2005 Potsdam public prosecutors initiated preliminary proceedings against Mr. W and Mr. S for aiding and abetting under §27  and §353b StGB. The Amtsgericht Potsdam (District Court) granted their request for a search of the CICERO offices, confiscation of possible evidence and the copying of the hard disk of Mr. S’s computer. It reasoned that both Mr. W and Mr. S knew that the report was classified and that they both published the information anyway. However, the search was not executed because Mr. S willingly handed over the relevant CD-ROMs and e-mails. Mr. W lodged a complaint against the copying of the hard disk, which was refused, because the Landgericht Potsdam (First Instance Appeal Court) said there was a sufficient suspicion that the informant had forwarded the documents specifically so the press would publish them and because the interest of the search outweighed the right to freedom of the press.

Mr. W appealed that decision to the Bundesverfassungsgericht (Federal Constitutional Court) on the grounds that the interpretation of §353b StGB and the fact that publishing the information in an article automatically leads to aiding and abetting would disregard the right to freedom of press under Art. 5.1 Grundgesetz (GG, Basic Law). Moreover, Mr. W claimed that the search was not granted in order to confiscate evidence but to find the main perpetrator.

Decision Overview

The Federal Constitutional Court (Bundesverfassungsgericht) delivered a per curiam decision in favor of the Complainant, ruling that the decisions by the Amtsgericht and Landgericht infringed his right to freedom of press under Art. 5.1 GG, which includes the protection against state interference in the media’s confidentiality.

The Court said that freedom of press generally includes the editor’s right not to disclose sources of information. Searching the CICERO offices could lead to potential informants not revealing information due to the possibility that their anonymity might not be protected. In these circumstances, the Court found that the lower courts’ rulings constituted infringement of the protection guaranteed under Art. 5 GG.

Moreover, the Court said that the infringement could not be justified under §353b and §27 StGB or the procedural rules concerning search and confiscation because those sections and rules have to be interpreted in light of Art. 5 GG.  Because the lower courts had failed to deal with Art. 5 GG satisfactorily, this was sufficient to reject any justification for their rulings and the Court therefore said it was unnecessary to deal with the question whether the action of publishing information can even constitute aiding and abetting under §27 StGB in this case. The Court also said that the granting of search and confiscation orders in order to find the main perpetrator was unconstitutional, and that this seemed to apply in the present case, because there was no evidence to suggest that the informant intended to disclose a secret in the terms of §353b.

Hence, the Court concluded that the decisions by the Amtsgericht and the Landgericht did not take the Claimant’s right to freedom of press under Art. 5.1 GG sufficiently into account and thus, violated Art. 5.1 GG.