The applicant, a registered association, runs a local radio station. A programme broadcast by this station contained an item dealing with alleged police attacks during a demonstration. A presenter, who remained anonymous, included recordings of two phone conversations. The speakers were a police press officer and a person who introduced himself by name in the phone calls as an employee of the station. The public prosecutor’s office instituted criminal investigation proceedings against a person unknown on suspicion of a violation of the confidentiality of the spoken word (§ 201.1 of the German Criminal Code (Strafgesetzbuch). According to the press officer, there had been no agreement to record the phone conversations.
On the application of the public prosecutor’s office, the Local Court (Amtsgericht) issued a warrant for the search of the applicant’s business premises. The applicant appealed against this, and the Regional Court (Landgericht) rejected its appeal as unfounded. In the course of the search, sketches of the floor space and photographs of all areas of the radio station were made. In addition, a notebook and a number of files containing editorial documents were seized; the public prosecutor’s office made copies of some of these before returning them to the applicant. During the search, an employee of the applicant identified himself as the person who made the phone call.
The applicant petitioned for a declaration that the above investigation actions were unlawful and for the destruction of the sketches, photographs and copies made; by a further order, the Local Court rejected these petitions. The applicant’s appeal to the Regional Court against this order was unsuccessful.
The employee charged was warned and given a suspended sentence for a criminal fine of forty daily units of EUR 18.00 each for violation of the confidentiality of the spoken word. During the search, another person had admitted being involved in the broadcasting of the programme, but no criminal proceedings were instituted, on the grounds of triviality.
In its constitutional complaint in the proceedings 1 BvR 1739/04, the applicant challenges the issuing of the search warrant for its editorial offices. Its constitutional complaint in the proceedings 1 BvR 2020/04 challenges the decisions which confirmed the manner in which the search was carried out and the seizure or taking into custody of its editorial documents. Inter alia, it challenges a violation of its fundamental right to freedom of broadcasting under Article 5.1 sentence 2 of the Basic Law.
In both proceedings – or in the proceedings 1 BvR 2020/04, at least predominantly – the Federal Constitutional Court annulled the challenged decisions because they violate the applicant’s freedom of broadcasting. Both matters were remitted to the Local Court for a new decision.
In its objective sense, the fundamental right of the freedom of broadcasting protects the institutional independence of broadcasting all the way from the moment in which information is obtained to the dissemination of news and opinion. This protection also covers the confidentiality of editorial work. The confidentiality in essence prevents state agencies from observing the processes which produce news reports or contributions which are printed in the press or broadcast on the radio. The right of an editor not to disclose information sources also covers documents relating to organisation which reveal work routines, projects or the identity of an editorial department’s employees. Both the issue of a warrant to search the applicant’s premises as well as the decisions of the regular courts which regard the documentation of the editorial premises in photographs and sketches and the removal of editorial documents and making copies thereof as permissible therefore interfere with the freedom of broadcasting.
These interferences are not constitutionally justified.
The decisions on the issue of the search warrant in the proceedings 1 BvR 1739/04 contain no sound assessment of the proportionality of the search ordered. Even if in the individual case the prohibitions of seizure specific to the press contained in the Code of Criminal Procedure (Strafprozessordnung) do not apply, in the course of the necessary review of proportionality account must be taken of the influence of the freedom of broadcasting on other areas of law. This requires a sound weighing of the interest in criminal prosecution relating to the specific acts to be prosecuted on the one hand against the interferences with the freedom of broadcasting entailed by the search on the other hand. The court decisions challenged do not satisfy this requirement. For in assessing the proportionality of the search they merely determine the interest in criminal prosecution in abstract terms, and they weigh against it only the de facto obstruction of the act of broadcasting. Instead, firstly the interest in the prosecution of the specific act should have been weighed, because this is not patently so serious as to automatically justify significant interferences with the freedom of broadcasting. Secondly, in order to weigh the severity of the interferences with the freedom of broadcasting, not only the de facto obstruction of the act of broadcasting should have been taken into account, but also the effects of the procedural measures on the medium as such. It must in particular be considered whether the investigation measure can be restricted to the area of operation of individual journalists or whether it must inevitably be extended to a whole editorial department. Carrying out a search of the premises of a radio station generally results in a disturbance of the confidential relationship between the radio station and its sources of information. In addition, an unrestricted search may have a considerably intimidating effect on the press medium affected. This is capable of significantly adversely affecting the readiness of the editorial department or of individual editorial staff who were not involved in the act to carry out critical research and reporting on government matters in future.
The criminal investigation authorities must also avoid an excessive interference with the freedom of broadcasting in the performance of a search of a radio station.
Insofar as the decisions challenged in the proceedings 1 BvR 2020/04 find that making copies of the editorial documents removed was lawful, they are incompatible with the applicant’s fundamental right to freedom of broadcasting. For in the assessment of the proportionality of the measure, insufficient account was taken of the interests this right comprises. Admittedly, it is unobjectionable that the regular courts regarded it as necessary to seize the documents in order to identify the persons involved in the radio programme and accorded sufficient importance to the copies as evidence in the investigation proceedings. Similarly, it was also justifiable to hold that the conditions for a prohibition of seizure specific to the press were not met in this case. As in the proceedings 1 BvR 1739/04, here too the review of reasonability which was also necessary was omitted. It should have been taken into account that the specific act was not particularly serious, and also that during the search one employee of the applicant had already admitted his actions. It is equally not clear whether, on the other hand, the regular courts took into account in their weighing of interests the considerable adverse effect on the protection of confidentiality of editorial work comprised in the freedom of broadcasting entailed by the copying, in lieu of seizure, of documents on the working methods and employees of two editorial departments of a radio station.
The decisions of the regular courts are also incompatible with the applicant’s freedom of broadcasting insofar as they find that making the photographs and floor area sketches of the rooms searched were lawful and consequently rejected the petitions to destroy them. On the one hand, it is not clear that it was necessary to prepare detailed documentation including photographs and sketches of all the rooms. The challenged decisions do not even indicate the relevance of documenting the location where the seized files were found. On the contrary, the location was not even marked on the sketches made. On the other hand, here too in assessing the proportionality of the investigation measures, the regular courts did not include in their assessment of the investigation measure’s proportionality the adverse effects on the constitutionally protected confidentiality of editorial work which these entailed.