20 May 2020 Lvl. 2
State repliedProgress
Alert created on: 08 Jul 2016 n° 68/2016 Germany

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

Source of threatState
CategoryOther acts having chilling effects on media freedom
Partner RSF AEJ EFJ/IFJ Index
Partner RSF AEJ EFJ/IFJ Index
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
20 May 2020: 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.
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