Freedom of expression

The rules and limits on investigative journalism

Investigative journalists regularly run the risk of overstepping legal boundaries. This article discusses some of the possible criminal and civil sanctions that can apply to investigative journalism activities such as conducting research or publishing secret information received through informants.

The rules and limits on investigative journalism ©-ferkelraggae-Fotolia-Fotolia_31081868_XS

The rules and limits on investigative journalism ©-ferkelraggae-Fotolia-Fotolia_31081868_XS

Possible criminal sanctions when conducting research

1. Trespassing § 123 StGB

Investigative journalists are not permitted to obtain their information by entering private rooms or business offices. In such an event, journalists would be trespassing and, upon request, can be criminally prosecuted. Under no circumstances does the public interest served by the journalist’s research outweigh unauthorised access and the accompanying violation of privacy.

2. Privacy of the spoken word § 201 StGB

Investigative journalists are not permitted to secretly record and use non-public statements, or make them available to a third person. Criminal liability also arises for recording or wiretapping telephone conversations. However, the law provides for an exception where the publication of the statements overwhelmingly serves the public interest.

3. Violation of intimate privacy by taking photographs § 201a StGB

Journalists are not allowed to violate the intimate privacy of individuals by producing or disseminating unauthorised photographs of persons in their dwellings or located on premises especially protected from view. Intimately private situations include illness, death, sexuality and nudity. In practice, this means that consent for the publication of photographs often has to be obtained in advance.

4. Spying on and interception of data § 202a StGB

The interests of journalists in obtaining meaningful information do not entitle them to intercept or spy on data. Journalists are entitled to use information legally obtained by a third persons. However, a prohibition on the publication of such data may again apply, if personality rights would be violated.

5. Stalking § 238 StGB

Approaching a person too often and thereby interfering with the personal privacy and impairing their liberty and freedom of choice can come with criminal consequences.

In the legal sense, the act of approaching someone includes physically approaching someone and attempting to contact someone, whether by e-mail, via a third person or other similar method.

It is currently unclear in how far journalists are permitted, in light of their unique position in society and article 5(1) of the German constitution, to use of such measures and how persistent such measures can be.

Civil law consequences when conducting research

When conducting research, journalists can easily violate the personality rights of third persons. Such persons would then be entitled to seek an injunction against the investigative journalist. In rare cases, the journalist may even be required to pay compensation, if the person concerned can prove they suffered material loss. In addition, damages could be sought for immaterial loss when a severe and intentional violation of a person’s personality rights occurs.

1. Violation of personality rights through sound recordings

Although, pursuant to § 201 StGB, recording statements made in public is not illegal, it does require the prior consent of the speaker. Such consent is often implied through the circumstances, such as when microphones are held towards the speaker’s mouth and the speaker does not object.

2. Unsolicited telephone calls as a violation of personality rights

Journalists’ research activity is protected by the German constitution, which means they cannot be prosecuted for requesting information by telephone for the first time. However, journalists must accept when someone refuses to talk and may not continue to exert pressure by seeking a conversation. Here, the threshold to stalking is fluid.

3. Violation of personality rights through planned surveillance of property

Investigative journalist a not generally permitted to permanently observe private premises. Such action interferes too severely with a person’s right to the protection informational self-determination. In very exceptional circumstances, such measures can be justified by the high public interest in the information.

4. Deception

It is not unusual for investigative journalists to gain access to a company in order to obtain internal information. The classic example is of a journalist who gains employment in a company. Such deception is immoral and entitles the employer to rescind the employment contract. But here too, public interest in the information must be considered and the positions weighed up.

Liability for the publication of illegally obtained documents

Should the information published by a journalist concern state secrets, criminal liability could arise (cf. § 93 et seq. StGB). This is particularly the case when there is a risk that the action of revealing state secrets could be severely detrimental to the external security of the Federal Republic. Only in extremely exceptional cases can the publication of state secrets be justified and protected by article 5(1) of the German constitution.

Journalists are also prohibited from publishing wiretap transcripts (§ 201(2) StGB) or reporting on secret court hearings (§ 353d StGB).

In all other circumstances, journalists themselves cannot be held criminally liable for publishing secret documents. However, they could be held criminally responsible if they intentionally incite an informant to divulge secret information.

The principle of the protection of journalistic sources

Journalists’ informants are protected by the principle of journalistic privilege (§ 53 German Code of Criminal Procedure). Only in rare exceptional circumstances, such as in cases concerning the endangering the peace between nations, endangering the democratic rule of law, crimes against sexual orientation and money laundering, can a journalist be refused privilege. However, restrictions apply to this exception in so far as a journalist may refuse to give evidence if the identity of the informant will become known.

The principle of protection of journalistic sources also extends to the research material gathered by journalists, which generally cannot be examined or confiscated by the authorities. In exceptional cases, such action is allowed provided: (1) the journalist is under suspicion of having being involved in the commission of a crime; (2) there are no other leads for conducting the criminal investigation; and (3) the severity of the alleged crime justifies the measures.

Investigative journalism: summary of the legal position

Conducting undercover research is often illegal and in some cases journalists can face criminal prosecution. As well as criminal sanctions, investigative journalists could also face civil claims if they breach personality rights or commit deception. However, journalistic measures adopted during the research phase can be justified in individual circumstances. This is often the case where there is a high public interest in the information.

While investigative journalism benefits from the high value afforded to the protection of journalistic sources, the protection is not unqualified. Where the journalist is suspected of having contributed to a crime, or where the case concerns particularly severe crimes, privilege may not be relied upon.

To avoid the risk of facing criminal and civil sanctions, investigative journalists should weigh up the interests in any given case before publishing a controversial report.

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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