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13.01.2016

Germany: No priority for media filing first FoI request

Cristina Bachmeier

On 12 March 2015 (case no. 27 K 183.12) the Administrative Court in Berlin denied the right of a journalist to have a "timeliness priority" (Recht auf Aktualitätsvorsprung).

A journalist requested access from the Office of the Federal Chancellor to files concerning the training of terrorists in Yemen, the three victims of the so-called "German Autumn" and the hijacking of the Lufthansa plane "Landshut". Three months later, the press representative of a competing magazine filed the same FoI requests. The state released later information to both applicants at the same time.

The journalist considered that his economic interests were affected by the simultaneous release of the information and, therefore, complained to the court.

 

He argued that his exclusive investigative topic has lost its exclusivity, while the state has infringed the duty of neutrality. The danger of repetition of such action also existed, since the state authorities had announced that when they receive several requests on the same topic, information would be issued simultaneously.

 

The Court stated first that it is a defensive competitor's lawsuit, with which the plaintiff wants to prevent its competitor from obtaining an advantage. Based on Article 3 in conjunction with Article 5 (1) GG, there is a substantive duty of content neutrality of the state. On the basis of both articles, under the consideration of the obligation of fair competition and the prohibition of interference in the content and organisation of individual press products, the Court found that it is forbidden to state authorities to differentiate between individual journalists by deciding on the content and timing of information released to the press.

 

The risk that parallel investigations can lose their exclusivity in case of simultaneous dissemination of a certain research topic lies in the sphere of journalistic activity and could not be imposed to the rule of law or to the principles of the public administration. Therefore, the simultaneous transmission of the documents to both press representatives by the defendant was lawful. The appeal was not admitted.

Cristina Bachmeier, LL.M., is a research associate at the Institute of European Media Law (EMR), Saarbrücken/Brüssel.


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The decision of the Administrative Court Berlin is available in German here.



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