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05.02.2016

Germany: press freedom does not take precedence over relations with Ukraine and Russia

Katrin Welker
On 8 December 2015, the 6th Senate of the Higher Administrative Court of Berlin-Brandenburg decided that the federal government is not obliged to give information to a representative of the press on a report of the German ambassador in Ukraine (OVG 6 S 37.15).

The plaintiff is the managing director of a charitable company, which operates a website with journalistic content. He tried to get answers from the government about the content of a report of the German ambassador in Ukraine regarding the military capability of the Ukrainian separatists to shoot down passenger aeroplanes. The plaintiff argued that the report was not confidential. A report of a Dutch diplomat as well as a statement of the Ukrainian government already contained information regarding the plaintiff’s questions about possible Russian support for the Ukrainian separatists. Thus, according to the plaintiff, a statement of the German government answering his questions, could not be seen as a breach of confidence by the Ukrainian government.

However, the Higher Administrative Court dismissed the action and confirmed the decision of the Administrative Court of Berlin. According to the Court, the protection of confidentiality was more important than the freedom of the press in this particular case regarding international relations. The Court explained that the Federal Government perceives itself in the role of a mediator in the conflict between the Ukraine, the Ukrainian separatists and the Russian Federation. Therefore, the German government has a peace-keeping role in this conflict and has to protect its neutral position toward all conflict stakeholders. The absolute confidence of all parties of the conflict is essential to the German government’s role as a peace-keeper. It would be a breach of that confidence if the government were to disclose any information which was supposed to be treated as confidential.

Furthermore, the Court explained that the question of whether or not the government has to disclose the confidential information to the press does not depend on whether or not any information was made public by another party. Therefore, the plaintiff could not support his claim with the fact that an unauthorised report from a Dutch diplomat or a statement by the Ukrainian government existed regarding the requested information.

Katrin Welker works as a scientific researcher at the Institute of European Media Law (EMR), Saarbrücken/Brüssel.


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The verdict of the Higher Administrative Court is available in German language here.



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