Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
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The Higher Administrative Court in North Rhine-Westphalia, Germany held that the police infringed upon the right to freedom of assembly by taking photographs of a public assembly and its participants and publishing it on the police’s social media platforms. During a public assembly against racism, two police officers took photographs of the assembly – which allowed for the identification of the participants – for the purpose of the police’s public relations. Two of the participants brought an application seeking a declaration that the police conduct was unlawful and infringed their right to freedom of assembly under article 8 of the German Basic Law. The Court agreed with the lower court’s reasoning and held that taking of photographs at a public assembly deterred future participants and so infringed their exercise of the right to freedom of assembly. The Court held that there was no statutory basis for the police conduct and that it was, therefore, an unlawful limitation of the right.
On May 6, 2018, Mr. B registered a public assembly to protest against racism at the Essen police headquarters in North Rhine-Westphalia, Germany. Mr. B and Mr. S were among approximately 150 participants at the public assembly, at which police forces were present. Two uniformed police officers took photographs of the assembly and published those, together with information on the ongoing protests, on the Essen Police Facebook and Twitter profile while the public assembly was ongoing. The pictures showed police forces and vehicles as well as participants of the assembly, including Mr. B and Mr. S. Inquiries to the police about the legal basis for the taking of the photographs and their publication remained unanswered during and after the assembly.
On July 4, 2018, Mr. B and Mr. S sought an action for a declaratory judgment before the Administrative Court Gelsenkirchen (Verwaltungsgericht Gelsenkirchen) that the taking of photographs, in which they were depicted in an identifiable manner, and the publication of those photographs on Twitter and Facebook by the police were unlawful. Mr. B and Mr. S argued that this had infringed their right to information self-determination under article 2(1), in conjunction with article 1(1) of the German Basic Law. In addition, they asserted that their right to freedom of assembly under article 8(1) of the German Basic Law had been violated as citizens might be deterred from attending a public assembly in future out of concern for government surveillance.
Article 8 states that “(1) [a]ll Germans shall have the right to assemble peacefully and unarmed without prior notification or permission” and “(2) [f]or assemblies in the open air, this right may be restricted by or pursuant to a law.”
Mr. B and Mr. S submitted that the police could not rely on a sufficient legal basis for these measures as none of the Assembly Act (Versammlungsgesetz, VersammlG), the state’s Press Law (Pressegesetz Nordrhein-Westfalen, PresseG NRW) or the Law on Copyright in Works of Fine Arts and Photography (Kunsturhebergesetz, KunstUrhG) justified their conduct.
Essen Police argued that it had a public relations duty and that the photographs of the public assembly were taken by a professional police team dealing cautiously with the participants’ interests and in a wide-angle perspective so the participants were not in the focus. The Police submitted that the taking and publication of photographs during a public assembly would be “in the nature of things” and therefore a general risk of life to which the participants voluntarily exposed themselves.
On October 23, 2018, the Administrative Court ruled in favor of Mr. B and Mr. S and held that the Essen Police’s taking of photographs during the assembly – even if for the sole purpose of public relations on social media – infringed upon Mr. B and Mr. S’s right to freedom of assembly. It held that the deployment of the police officers was capable of creating a “feeling of being surveilled with the associated insecurities and intimidation effects” among the assembly’s participants [para. 67]. As the constitution provided for a “state-free character of assemblies”, the use of cameras during assemblies for the purpose of public relations had to be based upon a sufficient and proportionate statutory basis [para. 73]. The Court held that there was no such statutory basis and so the Essen Police’s argument that they were empowered to act by law – particularly ministerial directives on the police’s public relations or the general state’s right to public relations – was unfounded.
The Essen Police appealed the decision to the Higher Administrative Court North Rhine-Westphalia (Oberverwaltungsgericht Nordrhein-Westfalen) which accepted the appeal on March 6, 2019.
The Higher Administrative Court, North Rhine-Westphalia delivered a unanimous decision. The central issues for the Court’s determination were whether the taking of photographs during the assembly and their publication encroached on the right to freedom of assembly under article 8(1) of the German Basic Law, and whether there was a legal basis for the taking of those photographs.
In examining article 8(1), the Court referred to German jurisprudence and stated that it protects “the entire process of assembling” as a collective act of communication and “an indispensable form of forming and expressing opinions in a democracy” [para. 56]. It noted that this basic right could be infringed by “de-facto measures, if these are equivalent in their intensity to imperative measures and have a deterrent or intimidating effect or are capable of influencing the free formation of will and freedom of decision making of the persons who (intend to) participate in assemblies” [para. 56]. The Court referred to the decision of the Federal Constitutional Court in BVerfGE 122, 342-374 (27/02/2009), which had held that creating the impression that participation in a public assembly is recorded by the authorities through taking photographs may lead to an infringement of the right to freedom of assembly. The Court noted that the photographs created an atmosphere in which participants felt that their attendance and contribution to the public assembly were being recorded in a way that did not relate to their specific conduct at the public assembly and would remain accessible after the public assembly.
With reference to BVerfG, 1 BvR 2492/08 (02/17/2009), the Court characterized the photographs as “sensible data […] that are capable of providing information on the political opinion” of an individual participant [para. 62]. Accordingly, and in line with the Federal Constitutional Court in BVerfGE 122, 342-374 (27/02/2009), the Court held that the taking of photographs or videos (with the current technology) of an assembly always constitutes an encroachment on the freedom of assembly, because the participants are usually recorded in an identifiable manner. The Court examined the circumstances of the present case and applied an objective standard of judgment.
The Court held that because the police officers took photographs that depicted the claimants in an identifiable manner, this was intimidating and served as a deterrent which was objectively capable of preventing people from participating in the assembly and exercising their basic rights (or at least influencing their behavior during the participation). The fact that the photographs were taken for the sole purpose of public relations was irrelevant to the Court: on the one hand, it was not clear to the participants for which purpose the photographs were exactly used; and on the other hand, the deterrent and intimidating effect was potentially intensified when participants were aware of the fact that the photographs were published on the police’s official social media accounts. Accordingly, the Court held that the police’s measures infringed Mr. B and Mr. S’s right to freedom of assembly under article 8(1).
In assessing whether the police could rely on a sufficient statutory basis to justify the infringements of the right to freedom of assembly under article 8(2), the Court examined sections 12(a) and 19(a) of the Assembly Act which allows for video and audio recordings of assembly participants only if there are factual indications that they pose significant threats to public safety or order. The Act requires that those recordings be deleted promptly if they are not required for criminal prosecution or averting dangers. As the Essen Police’s purpose in taking the photographs was public relations, the Court held that the Assembly Act could not serve as a justification.
In addition, the Court made reference to established law practice and said that as the Assembly Act “contains conclusive regulations regarding the powers of the assembly authorities to intervene, it takes precedence over general police law – and other legal provisions – as a special law” [para. 80]. This legislative framework means that the police may only have recourse to the general police and regulatory law to prevent dangers that are not specific to assemblies. Accordingly, the Court held that as sections 12(a) and 19(a) of the Assembly Act contained specific and conclusive regulations on video and audio recordings of assemblies by the police, it could only rely on these legal bases to justify their measures.
The Court held that – even if the regulations from the Assembly Act were not conclusive – the Essen Police could not rely on section 23(1) of the Kunsturhebergesetz or section 4 of the PresseG NRW as statutory bases for their measures. Section 23(1) of the Kunsturhebergesetz allows the depiction of unknown people in photographs without their consent in the case of assemblies, but the Court held that this was “clearly not tailored to sovereign measures” [para. 98]. The Court held that section 4 of the PresseG NRW, which obliges authorities to inform the press on the fulfillment of their public duties, would not vest state authorities with the power to interfere with third persons’ basic rights for the sake of public relations.
The Court also held that the basic permissibility of state public relations (staatliches Informationshandeln) could not justify the police’s encroachment on the freedom of assembly. It recognized that state’s public relations are “necessary to keep the fundamental consensus in the democratic community alive” and as a duty of state administration do not require an explicit statutory basis [para. 113]. However, it noted that the exercise of the state’s public relations duties without an explicit statutory basis was only permissible, if that would “not lead to directed encroachments on basic rights or functional equivalents of such encroachments, but only to factual-indirect interferences with basic rights” [para. 115]. Accordingly, the Court held that as the taking and publication of photographs of a public assembly makes individual participants identifiable, it required a specific statutory basis.
Accordingly, the Court held that the Essen Police’s taking and publication of the photographs was unlawful, because it unjustifiably infringed the right to freedom of assembly under article 8(1).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In holding that state actions that are capable of (directly or indirectly) deterring or intimidating participants of a public assembly are a violation of the right to freedom of assembly and so require an explicit statutory basis for their justification, the Higher Administrative Court protects the right in the face of de-facto encroachments, such as the taking and publication of photographs at the public assembly.
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