Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The Bundesverfassungsgericht (German Constitutional Court) held that the Complainant publisher’s right to freedom of the press under Article 5(1) of the Grundgesetz (German Constitution) had been violated when the President of the Landgericht Thüringen (District Court in Thuringia) denied access to information concerning a criminal proceeding in which a former politician was involved, a decision upheld by the Oberverwaltungsgericht (Higher Administrative Court). The Constitutional Court reasoned that the mere possibility that similar cases which had not yet started might lead to witness manipulation was not a sufficient reason to deny access to the information.
The Complainant, Handelsblatt GmbH, a German publishing group, applied to the Respondent, the President of the Landgericht Thüringen (District Court in Thuringia) for access to the written opinion of the Court in the form of an anonymized copy of a judgment which referred to criminal proceedings in which a former Secretary of the Interior of Thuringia was convicted to one year and three months probation for the acceptance of benefits in two cases as well as bribery. Two similar cases, against another person and a former mayor had yet to commence.
The Complainant applied to an Administrative Court, which found that the Respondent was obliged to grant access to the requested information. On appeal by the Respondent, the Oberverwaltungsgericht (Higher Administrative Court) reversed that decision, rejecting the Complainant’s request for information. The Court in those proceedings reasoned that under §4(2) Thüringer Pressegesetz (Thuringia’s Press Law) it is possible to deny access if disclosure could impede a criminal proceeding. Because the underlying criminal proceeding was on appeal, and two similar cases had not yet started, the Court argued that granting access to information and the possibility that the decision might be quoted, could lead to witness manipulation.
The Complainant then filed a constitutional complaint in the Bundesverfassungsgericht (German Constitutional Court), claiming an infringement of the right to freedom of the press under Art. 5(1) Grundgesetz (GG, German Constitution).
The Court delivered a per curiam opinion in favor of the Complainant, finding that the right to freedom of the press under Art. 5(1) GG was infringed by the Respondent’s refusal to grant access to information. In general, unhindered access to information enables the press to fulfill its democratic functions, namely to inform and monitor, which are particularly engaged when covering a criminal proceeding. In such cases the right to freedom of press deserves higher protection than in cases in which the press covers stories that simply intend to provide entertainment.
The Court found that the way the Oberverwaltungsgericht applied §4 of the Press Law constituted a violation of the right to freedom of press because the given reasons were not sufficient to refuse that access. It said that the mere possibility of witness manipulation without any indication of the same was not enough to refuse access, especially as there was an elevated public interest because of the people involved in the criminal allegations and proceedings.
In these circumstances, the Court held that the refusal to grant access constituted a violation of Complainant’s right to freedom of press under Art. 5(1) GG and remanded the case to the Oberverwaltungsgericht (Higher Administrative Court) for a decision in accordance with its ruling.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court’s decision expands expression by ruling that the right to freedom of the press under Art. 5(1) Grundgesetz (German Constitution) includes the right to access a Court’s opinion on a criminal case with a substantial public interest.
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.