Case Summary and Outcome

The Federal Constitutional Court of Germany held that searches of media houses by investigative authorities violate the right to freedom of the press if they primarily serve the purpose of investigating possible crimes committed by journalist’s sources. After a journalist had travelled to the Netherlands with an off-duty police officer to investigate a story of human trafficking, there were allegations that the police officer had passed on confidential information to a separate journalist on a different matter. The investigative authorities suspected that the police officer had received money for passing on confidential official information in relation to the trip to the Netherlands. A local court authorized the search and seizure of the journalist’s house and his publishing house’s offices, and an appeal court held that the search and seizure was justified because of the suspicion of a crime having been committed. The Federal Constitutional Court disagreed and held that searches of editorial offices or homes of journalists may not serve the primary purpose of investigating possible crimes of informants, finding that there must be sufficient factual reasons to believe that a journalist may have committed a crime which would mean they could not rely on the privileged protection in the German Code of Criminal Procedure. The Court held there were no such facts present and that, given the importance of the freedom of the press, the search and seizure in this case was unconstitutional.

Facts

In 2010, B, a journalist working for the German daily newspaper “Berliner Morgenpost”, conducted research in connection with the disappearance of two children in the 1990s. As part of this research, in 2011, he traveled to Amsterdam, accompanied by the senior police commissioner N. (Polizeioberkommissar). This joint journey raised the suspicion of bribery, punishable under § 334 German Criminal Code (Strafgesetzbuch, StGB) based on the suspicion that the journalist B. would have paid 100 euros to police officer N. for passing on confidential official information. Furthermore, N. had invoiced the chief editor of the newspaper for 3,149.07 Euro, and the invoice included the words: “Due to the conspiratorial nature of this matter, I request payment in cash.” The police officer N.’s trip to the Netherlands was neither authorized by nor known to his office. Due to the clandestine nature of the trip, the invoicing, and in view of the request for a conspiratorial accounting of the costs, there was a suspicion that the activities performed by N. for the newspaper had an official connection. The investigative authorities became aware of this invoice in the context of other investigations, in which N. was accused of having passed on information on an upcoming police raid in the Berlin motorcycle club milieu to the news magazine “Spiegel-Online”.

In November 2012, the local court Berlin-Tiergarten (Amtsgericht Tiergarten) authorized the search of the editorial offices of the publishing house, U., and B’s home, The investigative authorities seized various data carriers during the search.

In an article published in December 2012, U. stated that the police officer N. had been engaged as an “security expert” and insisted that a special security standard was maintained on the research trip to Amsterdam because in the surroundings of the child trafficking ring several witnesses had already died. It noted that N. had accompanied the journalists off duty and received a payment common in the security industry.

The Berlin Regional Court (Landgericht Berlin) rejected the appeal filed by B. and U. against the search order and found that there were sufficient suspicious facts for a search. The search was also not precluded by any privileges under press law, especially not by Sec. 97 (5) German Code of Criminal Procedure (Strafprozessordnung, StPO) which states: “The seizure of papers, audio and video media, data carriers, images or other depictions in the custody of [journalists] or of the editorial office, the publishing house, the printing works or the broadcasting company shall be inadmissible insofar as they are covered by the right of such persons to refuse to testify. […]” Sentence 2 refers to an exception rule that “[t]he restrictions on seizure shall not apply if certain facts give rise to the suspicion that the person entitled to refuse to testify participated in the offense or in handling stolen data, aiding after the fact, obstructing prosecution or punishment, or handling stolen goods […]”. For cases of participation in criminal acts, this exception rule applies only “where the particular facts give rise to a strong suspicion of participation” and “in these cases, too, seizure shall only be admissible, however, where it is not disproportionate to the importance of the case having regard to the basic rights arising out of Article 5 (1) sentence 2 of the Basic Law (Grundgesetz) and the investigation of the factual circumstances or the establishment of the whereabouts of the offender would otherwise offer no prospect of success or would be much more difficult.” (Sec. 97 (5) sentence 2 StPO).

The Regional Court stated that the search order was based on a strong suspicion as investigations found, among other facts, that the police officer had a second mobile phone which was registered to a non-existent person and was solely used for communication with two journalists, including B. It was also known that N. had transferred a significant amount of data from his official to his private computer via email in May 2012, and a few days later, the news magazine “Spiegel-Online” had reported on the impending police raid in the Berlin motorcycle club milieu.

U. and B. filed a constitutional complaint, opposing the search and seizure.

Decision Overview

The Third Chamber of the First Senate of the Federal Constitutional Court of Germany delivered a unanimous decision. The central issue before the Court was whether the search and seizure in the editorial offices and the journalist’s home was an encroachment on the right to freedom of press and not justified.

U. argued that there had been a violation of its right to freedom of press under Art. 5 (1) sentence 2 German Basic Law (Grundgesetz, GG), and B. also alleged a violation of his right to inviolability of the home under Art. 13 (1) and (2) GG.

The Court stated that established case-law confirms that the “freedom of the media is a constituent element of the free democratic basic order” and is “of particular importance for a free state” [para. 15]. The scope of protection of the right to freedom of press under Art. 5 (1) sentence 2 GG includes protection against “intrusion by the state into the confidentiality of editorial work and into the confidential relationship between the media and their informants” [para. 15]. It added that confidentiality of sources of information was indispensable for the freedom of press “because the press cannot do without private information, which it will only receive fruitfully if informants can generally rely on the preservation of editorial secrecy” [para. 15]. The Court held that U. and B., can rely on the protection of the freedom of press since it “protects all those working in the press, with protection extending from the acquisition of information to the dissemination of news and opinion” [para. 16].

In respect of the search of the publishing house, the Court found that “[a] search in press rooms constitutes an infringement of the freedom of press because it was associated with disruption of editorial work and the possibility of an intimidating effect. By ordering the seizure of data carriers for the purpose of evaluation, the investigative authorities have been given the opportunity to access editorial data material. This encroaches to a particular extent on the confidentiality of editorial work, which is encompassed by the basic right of freedom of the press, but also on any relationship of trust with informants” [para. 15].

Having found an infringement of the right, the Court determined whether the encroachment on the right to freedom of press was justified under the Constitution. The constitutional limit to the right to freedom of press is, primarily, “the provisions of general laws” in Art. 5 (2) GG. The Court held that “the provisions of the Code of Criminal Procedure, with their principal obligation for every citizen to contribute to the establishment of the truth in criminal proceedings and to tolerate the investigative measures provided for in the law, are recognized as general laws” [para. 18]. However, the Court stressed that the provisions of the Code of Criminal Procedure had to be interpreted in light of the freedom of press, which in turn had to be understood in relation to the legal interest protected by the limiting provisions. According to the Court, “the legislator has made such an allocation by, on the one hand, restricting the general duty of members of the media to testify […] and correspondingly restricting seizures from journalists and editorial offices in Section 97 (5) sentence 1 StPO, and on the other hand, by excluding a prohibition on seizures in case the witness or the seized object is involved in criminal acts” [para. 18]. The Court held that “[i]n doing so, the legislature has, at least in principle, struck a workable balance between the protection of the free press on the one hand and the legitimate state interest in a functioning criminal prosecution on the other” [para. 18]. However, according to the jurisprudence of the Federal Constitutional Court the exceptions to seizure in the Code on Criminal Procedure are not exhaustive. The Court held that even in cases where the protection of members of the media against seizure did not apply because a journalist is himself a defendant or co-defendant in the criminal act that is being investigated, the right (Art. 5 (1) sentence 2 GG) remains relevant for the interpretation and application of the procedural rules on searches and seizures. On this basis, the Court concluded that the initial suspicion against members of the press must be based “on concrete facts; vague indications and mere suspicions are not sufficient” for waiving the protection against seizure pursuant to Sec. 97 (5) sentence 1 stop [para. 19]. Accordingly, “a mere general suspicion that official information has been passed on to the press does not satisfy the constitutional requirements”, and so “searches and seizures in investigation proceedings against members of the press are inadmissible under constitutional law if they serve exclusively or primarily the purpose of investigating the person of the informant” and are “not based on a concrete criminal suspicion precisely against the members of the press specifically concerned” [para. 19-20]. The Court highlighted that if this was not followed the protection of sources would be in danger.

The Court held that the Regional Court’s order demonstrated that “the prosecuting authorities were at least primarily concerned with the investigation of incriminating facts against an informant from police circles” [para. 21]. It described the possible monetary payments and the connection between U. and B. and N. as a matter of mere conjecture. The Court noted that it was the news magazine “Spiegel-Online” and not the “Berliner Morgenpost” newspaper – for which B. works – which reported on an upcoming raid and that the orders of the lower courts did not indicate for which information provided to the complainants the money was supposed to have been paid. The Court emphasized that the performance of a sufficiently concrete act was required by the offense of bribery pursuant to Sec. 334 StGB and did not accept that a suspicion of bribery on the part of the complainants on the mere fact that the co-accused police officer used a “journalist’s cell phone” registered to a non-existent person was sufficient. It added that, even if this indicates that the informant forwarded official secrets to journalists, the “mere interest of the law enforcement authorities to learn of these facts does not justify a search of the editorial offices of press organs” in light of Art. 5 (1) sentence 2 GG. In particular, the Court held that this does not justify a criminal charge against the complainants.

For the Court, a sufficiently strong suspicion of bribery could also not be based on the note on the invoice. It reasoned that “[t]he invoice referred to the trip to Amsterdam, for which the official had declared himself unfit for duty and, according to the findings of […] the Regional Court, did not have a permit for secondary professional services. It therefore does not seem far-fetched that the note referred to the fact that the civil servant had to fear disciplinary consequences because of the false report of illness and the lack of authorization for secondary professional services. However, it does not give rise to suspicion against the complainants” [para. 23].

The Court concluded that there was insufficient suspicion to warrant a search and seizure of members of the media and that the encroachment on the right to freedom of press by the searches was not justified under the Constitution. For B., the Court stated that the inviolability of the home under Art. 13 GG does not offer any further protection and is secondary to the right to freedom of the press in Art. 5 (1) sentence 2 GG.

Consequently, the Court set the order of the Berlin Regional Court and the Local Court Tiergarten aside, since these violated U. and B.’s basic right under Art. 5 (1) sentence 2 GG and were unconstitutional.