Freedom of Expression and Press

May the press report on tax evasion?

In recent days a debate in Germany has erupted about freedom of the press and the right to report on tax evasion cases. Words like reputation damage, defamation, invasion of privacy and breach of confidentiality in tax affairs have been used. Where should the line be drawn?

May the press report on tax evasion? ©-Thomas-Jansa-Fotolia

May the press report on tax evasion? ©-Thomas-Jansa-Fotolia

Reporting on tax evasion

The tax evasion debate was sparked by a report in the German magazine “der Spiegel” on the tax affairs of prominent feminist Alice Schwarzer.

Schwarzer reported her own tax evasion to the tax authorities last year after harbouring sums in Switzerland on which she had not paid tax. She was ordered to back-pay an estimated 200,000 euros in tax. From a tax perspective the case was concluded; but then came the report in der Spiegel.

Is the media permitted to report on tax evasion cases? Where does the line between free press and right to privacy lie?

German lawyer and partner at WILDE BEUGER SOLMECKE, Christian Solmecke, offers his legal analysis.

Public interest

“The press may report on celebrities’ criminal behaviour when there is a justified public interest.”

In order to assess whether there is a public interest, the competing interests in each individual case must be balanced.

Here the competing interests are: the press’ right to freedom of expression under Art. 5 German Constitution (Grundgesetz, GG) and Schwarzer’s right to privacy under Arts. 2(1) and 1(1) GG (“general personality rights”).

Christian Solmecke: “In my opinion the greater right here, is that of the public to be informed. In the past, Alice Schwarzer has expressed her opinion on tax matters and in particular on joint tax declarations of spouses. Those who express such opinions and then themselves commit tax evasion should be prepared to tolerate public discussion of their case.”

In the meantime, Schwarzer has published a detailed position on her website of the media reports. But this has done her no favours.

“At the very latest, from the point at which Schwarzer published her own view on the media reports, she put herself in the public spotlight. There is no doubt that the media may now report on her case.”

Confidential information

The question remains whether the media reports, which rely on confidential information, are illegal.

“This is not the case, as the media may publish confidential information, provided they themselves did not obtain the information in an illegal manner.”

If however, journalists publish state secrets, they commit a crime under §§ 93 et seq. German Criminal Code (Strafgesetzbuch, StGB). The crime is committed if the publication of state secrets is of severe detriment to the external security of the Federal Republic of Germany. Only in extremely exceptional circumstances is the publication of state secrets protected by the right to freedom of expression.

Furthermore, the media may not publish transcripts of bugged conversations (§ 201 StGB) or report on court proceedings which have been held under the exclusion of the press (353 d StGB).

In other cases the media cannot be held criminally responsible for publishing confidential documents. However, journalists could be considered accessories to a crime, if they knowingly induce an informant into divulging information.

In each individual case, consideration should also be given as to whether the publication infringes others’ right to privacy or whether the right to freedom of expression applies as well.

Conclusion

The media reports on the Schwarzer case were, from a legal point of view, legitimate. Whether they were welcomed by the tax authorities investigating the case is another question.

Christian Solmecke is a partner at the law firm WILDE BEUGER SOLMECKE. He is the author of numerous legal publications in the area of internet and IT law. He is also an associate lecturer for social media law at the Cologne University of Applied Sciences.

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