Commentary on Press Freedom Day: The thing with your own nose

Chancellor Angela Merkel (CDU) once said when she was asked about racism in the USA on ZDF that she always recommends that the best thing to do when it comes to fundamental rights is to look after one’s own nose. After all, we ourselves have enough to do with it. At least you can agree with her on that point.

But the possible rituals and official postulates for the annual Press Freedom Day are far from heeding the former Chancellor’s advice. The ranking by the NGO “Reporters Without Borders” (RoG), which is always published in advance, certifies that the usual suspects such as North Korea’s Kim or Russia’s Putin are non-governmental enemies of press freedom.

And if Germany deteriorates a little and even slips out of the top ten for press freedom to 14th place, then, according to RoG, some extremists are to blame who threaten media representatives and harass and obstruct them at demos or major political events such as AfD party conferences. Might be. But at the same time, there is enough to be done within the sphere of influence of our federal government and its media minister Wolfram Weimer to support a free press instead of hindering it. A few examples follow.

How about, for example, a media information law that investigative journalists can rely on if they need information from federal ministries or authorities? For a good twelve years now, there has been no legal right in Germany for media representatives to request information from these authorities. Since the states are responsible for media, there is no federal press law. Until 2015, however, the respective state press law was also applicable to the federal authorities and therefore the obligation to provide information, which is usually set out in Section 4 in all 16 state press laws, also applied to them.

Bottom drawer

The Federal Administrative Court in Leipzig ended this decades-long practice in 2015. It ruled that state press laws do not apply to federal agencies. Only the federal legislature itself can prescribe information obligations for its authorities. In the absence of legal regulations, media representatives have a right to information directly under the Basic Law. However, this is at best within the framework of a minimum standard that the legislature would not be allowed to sign if it were to pass a law. But the Bundestag, which would be responsible for this, remained inactive for years.

That changed with the start of the traffic light government. In its coalition agreement, it provided for the creation of a media information law. However, the Traffic Light Minister of State for Media, Claudia Roth (B’90/Greens), who was responsible for the implementation, took several years to do so. The draft for the simple law, comprising a few paragraphs, was only ready at the end of 2024 and was no longer submitted to the parliamentary process due to the premature end of the traffic light government.

Roth’s successor Weimer initially expressed caution after taking office as Minister of State for Media. We will check this, said Weimer’s authorities when asked. The draft that is available to our editorial team does not actually standardize anything surprising, but basically does not reflect anything other than what is already stated in the state press laws. A minimum standard.

In the past few years since its fundamental decision in 2013, the Federal Administrative Court has already defined this in various decisions through judicial further legal development and has received one or two inappropriate refusals to provide information from the authorities. In principle, the interest in information must be carefully weighed against other legal interests that need to be protected, such as public or private interests in secrecy, whereby the press’ interest in information is given great weight due to the freedom of the press guaranteed by the constitution. The body responsible for providing information is therefore not entitled to an assessment, it is said again and again from Leipzig.

However, the law formulated under Roth’s aegis could have cured a misstep by the highest administrative judges. The Leipzig judges responsible in the first instance for lawsuits against the Federal Intelligence Service (BND) had to decide in a case about whether the service had to provide a journalist with information about the number of former employees and informants who were members of the NDSAP or organizations close to it. To do this, the authority would have had to evaluate thousands of files that only existed on paper.

In order to save the authority from this effort, the judges declared the information not available because it would first have to be generated through an investigation. With this justification you can of course refuse to provide any information, no matter how simple it is, because if you have a lot of questions you first have to look at a file or add up a few things.

This is exactly how authorities and lower courts, such as the Berlin Administrative Court, are now doing. It decided a year ago that the information as to whether a document found on the Internet actually came from the Federal Ministry of the Interior was “not available”. Ultimately, the officials would have had to look for it and compare it if necessary. This is a matter of obtaining information and the authorities are not obliged to do so, the decision states. The Federal Administrative Court itself had to correct its case law and postulated in a later decision that “a certain amount of effort required to select and compile information” does not exclude its existence within the meaning of the right to information. The Berlin judges didn’t even bother with it.

Remaining uncertainty

The considerable uncertainty that makes life difficult for investigative journalists in practice therefore remains. On the other hand, authorities and ministries must not be effectively paralyzed by excessive requests that involve immense effort. This was the case with the BND, which had already set up a commission of historians on the topic of its Nazi past and could therefore point to the expected results of their investigation. Roth’s draft, which is available to our editorial team (PDF), adopted a regulation that can also be found in some state press laws. According to this, the right to information can be excluded if the scope exceeds what is reasonable.

However, a practical demand that Roth’s own party had also adopted did not make it into the law: urgent legal protection should be standard for media representatives if they refuse to provide information. Until now, if they want to force a secretive authority to provide information in court, they have to fully explain the urgency and many requests fail because the courts already deny this and refer the matter to a regular procedure. But that can take two years or longer, and then it’s hard to do anything with the coveted information. And such procedures are also expensive.

But State Minister Weimer apparently sees no reason for even small improvements that the law could bring for journalists in this country. After a year in office, when asked again about the draft law, his office bureaucratically stated that “the project is currently not being actively pursued. There is no mandate for this in the coalition agreement. In the event of a renewed political mandate, the project can be resumed at short notice.”

In other words: The top politician, who works in the Merz government in the office of Minister of State in the Federal Chancellery and as Commissioner for Culture and Media, is waiting for a “political mandate” to improve press freedom even a little bit? Who should that come from if not Weimer himself? Wouldn’t that be exactly his job to take the initiative? But his press spokesman prefers to leave such questions unanswered.

Instead, he also spreads the usual and cheap statement on Press Freedom Day, which, according to Weimer, is important “to draw attention to the courageous journalists in countries like Venezuela, Russia, Iran and many others.”

Weimer has already clearly demonstrated that he doesn’t have the slightest knack for his job with regard to the book prize and the National Library. And it’s not enough to look at your own nose, as Merkel once demanded.

(tig)