Top journalists take Germany's secret service to court over surveillance

By Jane Whyatt

A group of seven international journalists - including Azerbaijan's award-winning Khadija Ismayilova, Slovenia's Blaz Zgaga and veteran British journalist Richard Norton-Taylor - have joined forces with six trade unions and human rights campaign groups to take the German secret service (BND) to court.

Their joint action at the Constitutional Court in Karlsruhe is based on the updated law known as BNDG-Novelle 2016. The journalists argue that it gives sweeping new powers for BND agents to intercept journalists' communications – even if they are foreign journalists operating outside Germany’s national borders.

Hanno Bordert, Managing Director of the investigative journalists' network n-ost, points out:

Such surveillance shakes the trust of journalists' sources that their identity will be kept secret This undermining of the protection of sources destroys a significant building-block of investigative journalism, and this poses a threat to press freedom worldwide."

Khadija Ismayilova Khadija Ismayilova (photo:Lisoynizami, Xədicə İsmayılova 1, CC BY-SA 4.0)

The complaint to the Constitutional Court also deplores the lack of control mechanisms and the partly automated co-operation between the BND and foreign secret services.

Because of these provisions, the plaintiffs argue that data gained by the BND from intercepted communications may be transferred to other intelligence services without proper oversight and without clear-cut limitations in place. So this makes it possible for the BND to lose control of the data, and that may put journalists in danger if their communications data falls into the wrong hands.

The journalists listed amongst the plaintiffs have personal experience of being persecuted by the authorities in their own homelands. Ismayilova was given a seven-and-a-half-year jail term in Azerbaijan for alleged tax fraud. But after receiving a number of awards and pressure from the global media freedom community, she was released from prison less than halfway through her sentence. However, she is still not allowed to travel and operates under restrictions.

German Constitutional Court in Karlsruhe German Constitutional Court in Karlsruhe (Picture Tobias Helfrich, Karlsruhe bundesverfassungsgericht, CC BY-SA 3.0)

Investigative reporter Zgaga believes he is under surveillance from the BND because it was revealed in 2007 that they work together with their Slovenian counterparts SOVA, and jointly run a listening post togther in the capital Ljubjlana. It is located at the point where important telecommunications cables link the Balkans with Western Europe.

And Norton-Taylor draws on fifty years of journalistic experience, including many contacts with the British secret service MI5. In the special website set up by the plaintiffs, he writes:

A former MI5 officer told me that they had at least five volumes of information about me. And I was also told that members of the British government authorities had passed on information about me to officials from other European countries."

Throughout his long career, Norton-Taylor has campaigned against official secrets and for press and media freedom. He worked on investigations revealing the extent of MI5 vetting of employees at the BBC public broadcaster in the 1980s. In 1995, he published his book Truth is a difficult concept, based on the Scott inquiry into the clandestine sale of weapons to Iraq, breaking the UN sanctions. And his latest article in The Guardian, on 25 January 2018, reveals what was not reported at a secret trial covered by a "gagging" court order.

The other reporters in the case are Goran Lefkov, based in Skopje and specialising in corruption; Paul van Gageldonk, who is resarching interantional inks between groups of football hooligans from his base in the Netherlands; German human rights lawyer Michael Mörth; and Mexican investigative journalist Raul Olmos. They are joined by the German journalists’ unions DJV and DJU, Reporters without Borders, the Society for Rights and Freedoms (GFF), n-ost, and netzwerk recherche.


More detailed information about the plaintiffs and the wording of the complaint can be found here (in German).

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