New Proposed Law Set to Increase the Power to Surveil Foreign Journalists

Update: 20 May 2020 State replied Progress
Year 08 Jul 2016 Country Germany Category Other acts having chilling effects on media freedom Source of threat State Partner RSF , AEJ , EFJ/IFJ , Index Alert level Level 2
08 Jul 2016 Germany Other acts having chilling effects on media freedom State RSF , AEJ , EFJ/IFJ , Index Level 2

A prospective draft was signed off by the Government on 28 June 2016 and will be read in Parliament on 8 July 2016. The new proposed legislation could allow the foreign intelligence service Bundesnachrichtendienst (BND) to increase their power to surveil foreign journalists abroad. According to the German branch of Reporters without Borders (Reporter ohne Grenzen), the law makes protection from surveillance dependent upon nationality. German citizens would not be subject to surveillance, EU citizens could be to some extent, but citizens from other countries would be at risk whenever Germany’s “capacity to act” needs to be safeguarded or if “insights into foreign and security policy may be of relevance”. Managing director of Reporter ohne Grenzen, Christian Mihr, said “up until now, each BND law contains an explicit exception for journalists from surveillance regulations. The new BND law, however, does not include any such provisions.”

Progress On 19 May 2020, the German Constitutional Court, acting on complaints from foreign journalists and Reporters Without Borders, ruled that telephone and internet surveillance of foreigners abroad by the BND violated the freedom of the press and right to privacy in telecommunications enshrined in the country’s constitution, or Basic Law. It is the first time the Court has ruled that the BND is subject to Germany’s constitution for its activities abroad. The ruling said that non-Germans were also protected by Germany's constitutional rights, and that the current law lacked special protection for the work of lawyers and journalists. This applied both to the collection and processing of data as well as passing on that data to other intelligence agencies. The ruling requires the government to amend the law on the BND’s powers introduced in 2017 by the end of 2021. On account of this ruling, the partner organisations to the Platform declared this case to be in “progress”. EFJ statement: "Victory for press freedom in Germany: Global mass surveillance ruled unconstitutional"

Updates

13 Jan 2020 : A hearing on Case 1 BvR 2835/17 is scheduled for 14 and 15 January 2020.
03 Feb 2019 : A similar constitutional complaint lodged by Humanistische Union against the disclosure of personal data by the BND to the Länders’ internal intelligence services (1 BvR 2354/13), is on the role of the First Chamber of the Federal Constitutional Court for 2019.
14 Feb 2018 : Journalists, trade unions and rights groups have lodged a constitutional complaint against the BND law (1 BvR 2835/17), arguing that it is unconstitutional as it allows for the "virtually unrestricted" monitoring of foreign reporters. It is on the role of the Federal Constitutional Court’s First Chamber.
16 Jan 2017 : On 31 December 2016, the law of 23 December 2016 on the BND’s foreign-foreign telecommunication intelligence (BGBl. I S. 3346 Nr. 67) entered into force.
21 Oct 2016 : On 21 October 2016, Germany's lower house of parliament, the Bundestag, approved the reform bill on the country’s main intelligence agency (BND).

State replies

Follow-ups

12 Jul 2016 : Surveillance amendments in new law in Germany pose a threat to media freedom, OSCE Representative says. She asks Bundestag to reconsider bill.

CONTACT US

Follow us   

Follow-ups to alerts Follow-ups to alerts

20 March 2018

On 20 March 2018, the European Court of Human Rights issued its Grand chamber judgment on Mehmet Altan’s case. The Court found there had been a violation of Article 5 § 1 (right to liberty and security) and a violation of Article 10 (freedom of expression) of the European Convention for Human Rights. With regards to article 5 §1, according to the Court findings, “Mr Altan’s continued pre-trial detention, after the Constitutional Court’s clear and unambiguous judgment of 11 January 2018 (…), could not be regarded as ‘lawful’ ”. The Court held that “for another court to call into question the powers conferred on a constitutional court to give final and binding judgments on individual applications ran counter to the fundamental principles of the rule of law and legal certainty, which (…) were the cornerstones of the guarantees against arbitrariness”. Under Article 10, the Court held in particular that “there was no reason to reach a different conclusion from that of the Constitutional Court, which had found that Mr Altan’s initial and continued pre-trial detention, following his expression of his opinions, constituted a severe measure that could not be regarded as a necessary and proportionate interference in a democratic society”. The Court pointed out in particular that “criticism of governments and publication of information regarded by a country’s leaders as endangering national interests should not attract criminal charges for particularly serious offences such as belonging to or assisting a terrorist organisation, attempting to overthrow the government or the constitutional order or disseminating terrorist propaganda”.

20 March 2018

On 20 March 2018, the European Court of Human Rights issued its Grand chamber judgment on Şahin Alpay’s case. The Court found there had been a violation of Article 5 § 1 (right to liberty and security) and a violation of Article 10 (freedom of expression) of the European Convention for Human Rights. With regards to article 5 §1, according to the Court findings, “Mr Alpay’s continued pre-trial detention, after the Constitutional Court’s clear and unambiguous judgment of 11 January 2018 (…), could not be regarded as ‘lawful’ ”. The Court held that “for another court to call into question the powers conferred on a constitutional court to give final and binding judgments on individual applications ran counter to the fundamental principles of the rule of law and legal certainty, which (…) were the cornerstones of the guarantees against arbitrariness”. Under Article 46 (binding force and execution of judgments) of the Convention, the Court held that it was incumbent on the respondent State to ensure the termination of Mr Alpay’s pre-tria detention at the earliest possible date. Under Article 10, the Court held in particular that “there was no reason to reach a different conclusion from that of the Constitutional Court, which had found that Mr Alpay’s initial and continued pre-trial detention, following his expression of his opinions, constituted a severe measure that could not be regarded as a necessary and proportionate interference in a democratic society”. The Court pointed out in particular that “criticism of governments and publication of information regarded by a country’s leaders as endangering national interests should not attract criminal charges for particularly serious offences such as belonging to or assisting a terrorist organisation, attempting to overthrow the government or the constitutional order or disseminating terrorist propaganda”.
Twitter feed Twitter feed
Thematic factsheets Thematic factsheets



Thematic factsheets Thematic factsheets



Partners Partners

CONTACT US

Follow us