ADAMEK v. GERMANY
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
The applicant, Mr Sascha Adamek, is a German national who was born in 1968 and lives in Berlin. He was represented before the Court by Mr K. Baumeister, a lawyer practising in Berlin. The applicant is a journalist who worked as a freelance with the Eastern German Broadcasting Service (Brandenburg), which broadcasted in May 1998 a television programme to which the applicant contributed as the author of a report. His contribution concerned allegations that the police in Potsdam, when calling towing services, gave preference to certain enterprises. In the report, the applicant filmed an entrepreneur who parked his towing service car near the motorway to wait for a message from the police radio in order to be able to get to the scene of an accident or breakdown in time. The report then referred to a recording from the police radio (Polizeifunk) from which it could be understood that the police gave preference to a certain towing service. The phrases “I have now talked to the citizen. He would be willing to become a member of [the towing service association] at the scene of the accident” were broadcasted and referred to in the report as a recording from the police radio. On 11 October 1999, the Potsdam District Court convicted the applicant of a violation of section 95 read in conjunction with section 86 of the Telecommunications Act (see “Relevant domestic law” below) and sentenced him to a fine of approx. 450 Euros (EUR). The District Court found that the applicant had unlawfully communicated the excerpts which he had intercepted from the police radio. Section 95 of the Telecommunications Act served to protect radio emissions of public authorities which were not intended for the general public in order to preserve the functioning of those authorities. It was compatible with the purpose of that provision that it did not provide for any exceptions, and that the provision did not limit the protection to only those messages which were transmitted by the authorities in the course of the lawful exercise of their powers. The District Court also considered the possibility of applying the defences to the charge provided for by Articles 193 and 201 of the Criminal Code (see “Relevant domestic law” below). However, it reasoned that there had been no loophole in the regulations of the Telecommunications Act which would justify the analogous application of those provisions, in particular because the Telecommunications Act had been enacted after the Criminal Code had entered into force. It could therefore be assumed that the legislator had intentionally refrained from including similar provisions in that Act. When assessing the applicant’s sentence, the District Court took into account that the applicant had felt obliged as a journalist to report to the public illegal conduct by the police. On 25 January 2000, the Potsdam Regional Court declared the applicant’s appeal inadmissible as manifestly ill-founded. The District Court had correctly decided that the applicant’s conduct had not been justified by a privilege in the Criminal Code. The Regional Court found that it had not been necessary to reproduce the excerpts from the police radio message in order to report on the shortcomings in question. On 11 December 2004, the Federal Constitutional Court refused to admit the applicant’s constitutional complaint. It reasoned that there had been interference with the applicant’s freedom to report by means of broadcasting (Article 5 § 1 of the Basic Law, see “Relevant domestic law” below), despite the fact that the applicant had unlawfully intercepted the police radio. Article 5 of the Basic Law also protected the communication of unlawfully obtained information which could be of significant interest to the general public, for example in cases of shortcomings on the part of the authorities. The interference was however justified under Article 5 § 2 of the Basic Law. Article 95 read in conjunction with section 86 of the Telecommunications Act laid down with sufficient precision the conditions for the applicant’s conviction. These norms were not rendered disproportionate by the fact that the protection of the information could have been achieved by less severe means (such as coding the police radio messages) than a general prohibition on their communication. The Federal Constitutional Court considered such technical means to be less efficient because their effect was more limited. The application of those norms and the balancing of the competing interests in the present case by the ordinary courts were not objectionable from a constitutional point of view. The Regional Court had considered the importance of the secrecy of the police radio communications and decided that that deserved priority over the interest of the general public in the present case, in particular because the applicant could have reported on the shortcomings in a different manner. The freedom of the press included the right of journalists to decide in which manner information was presented to the public. However, if that manner was in conflict with other interests protected by the law, the ordinary courts could legitimately balance the consequences of the communication of secret information on the one hand, and the consequences of the prohibition for journalists to communicate such information on the other. The Federal Constitutional Court stressed that the Regional Court’s interpretation of the Telecommunications Act was not that the information should have been suppressed, but that restrictions applied to the manner in which it could be presented. Therefore, the norms in the Telecommunications Act did not prevent journalists from reporting shortcomings to the public as such. (1) Every person shall have the right freely to express and disseminate his opinions in speech, writing, and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship. (2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour. (...) Interception by means of radio equipment of messages not intended for the radio equipment shall not be permitted. The content of such messages and the fact of their reception may not, even where reception has been unintentional, be communicated to other parties, even by persons who are not already committed to secrecy under section 85 of this Act. (...) The right to receive radio emissions intended for the general public or an unspecified group of persons as well as the interception and retransmission of messages by virtue of special legal authorisation shall remain unaffected. A person who, in contravention of section 86 of this Act, intercepts a message or communicates to a third party any message content or the fact of reception thereof shall be liable to a term of imprisonment not exceeding two years or to a fine. Article 193 of the Criminal Code provides for a defence (Rechtfertigungsgrund) to a charge of insult. According to that provision, critical judgments about scientific, artistic or commercial achievements, similar utterances which are made in order to exercise or protect rights or to safeguard legitimate interests as well as official reports or judgments by civil servants and similar cases are only punishable to the extent that the existence of an insult results from the form of the utterance or the circumstances under which it occurred. Article 201 of the Criminal Code provides for the offence of the violation of the confidentiality of the spoken word, but makes an exception if the public communication was made for the purpose of safeguarding preeminent public interests.