DE: Higher Administrative Court affirms right to information versus Foreign Office

Tobias Raab

On 30 December 2016, the Higher Administrative Court (Oberverwaltungsgericht, OVG) of Berlin-Brandenburg decided that, the German newspaper Tagesspiegel does have a right to access of information of the Federal Foreign Office regarding the legal assessment of the so called “Schmähgedicht“ (case no. OVG 6 S 29.16).

The German TV host Jan Böhmermann had read that poem during an episode of his late night show „Neo Magazin Royal“ as a reaction to the politics of Turkish president Erdogan. Böhmermann read passages about zoophilia and violence against women. He also pointed out the difference between lawful satire and defamation. After the German Federal Government had decided to allow preliminary proceedings against the TV host in spring 2016, Tagesspiegel tried to find out about those legal assessments provided by the Federal Foreign Office, which had been the basis of that decision.

The Court made clear that the newspaper’s right to access of the disputed information could not be denied because of fear that publishing it could hurt diplomatic relations between Germany and Turkey. Even though, the Foreign Office had argued this way, the Court stated that those worries could not justify denying access, as long as there was no concrete evidence that the publication might hurt the diplomatic relations.

The Foreign Office had argued that granting the press access to that information, might affect future consultations and decisions of the Federal Government. The Court did not see how publishing information from a concluded consultation could affect any future decisions at all.

Furthermore, the Court stated that Tagesspiegel was only trying to get access to information from a note preparing the decision, rather than the Governments decision itself. Therefore, the Court decided that publishing the information did not pose any risk for the freedom and openness within the German Federal Government.

The Higher Administrative Court agreed with the Foreign Office’s argument that publishing the information could violate Böhmermann’s presumption of innocence. But, as the TV host publically had abandoned his right of presumption of innocence, and as the preliminary proceedings had been closed already, there could not be a justification for denying access to the notes anymore.

Tobias Raab is an Attorney at Law at the German law firm Stopp Pick & Kallenborn and publishes abstracts for the Institute of European Media Law (EMR), Saarbrücken/Brussels.