Germany debates on wiretapping and press freedom
By Ayhan Simsek, Thursday, March 13, 2014
BERLIN - Turkey's recent wiretapping scandals, which included over two thousand people, have sparked demands for new laws and regulations to better protect privacy and personal rights.
As phone tappings have leaked to the press and the Internet, an increasing number of politicians and experts look at practices and legal frameworks in Europe.
Germany is among the Western democracies where wiretapping and leaks are widely debated issues following the revelations last year that Chancellor Angela Merkel has long been tapped by the NSA.
Dr. Cornelius Renner, an attorney specialized on Media Law, said Germany’s criminal code clearly regards wiretapping as a criminal act. If informants would leak these recordings to the press and the Internet then there would be an even more complicated picture.
“In such a case, a court would always have to weigh the respective interests of the press and the public on the one hand and the personal rights of the wiretapped persons on the other hand,” Dr. Renner told Anadolu Agency (AA).
Frank Fischer, an attorney from Wilde Beuger Solmecke law office underlined that, in Germany, both the relevant articles of the criminal code and the constitution defend confidentiality of communications and the rights of privacy.
“Article 201 of the German criminal code prohibits to tape-record unofficial spoken words and especially to use these kinds of tapes afterwards without the explicit consent of the ‘other’ party,” Fischer told AA.
If there should be a wiretapped telephone conversation of the German Chancellor or any minister to appear on YouTube or any other internet site, then courts would take into consideration the “appreciation of values” between the personal rights of a member of the government – and the superior “public interest”, as well as the press freedom, Fischer said.
“The German legal system sees the freedom of expression as the general human rights freedom, which needs to be protected as long as it is not used to purely discredit another person and humiliate his/her personal honor,” he said.
If the leaked conversation would be about the private life of a politician then the individual should be entitled for a claim to prohibit the publication by civil law action, Fischer said.
Attorney Aziz Sariyar told AA that in Germany wiretapping can only be carried out following a decision of judges and only for a limited time period, based on strong suspicions.
“If somebody taps a telephone or secretly makes a recording without the consent of those concerned, or without a court decision, he or she commits a crime at the moment of this act,” Sariyar said.
Attorney Sariyar also underlined that in Germany it was highly difficult or even impossible for judges to tap phones of government members or parliamentarians even if they carry out investigations against any of them with strong suspicions.
“Judges are completely free,'' Sariyar said. ''In judicial terms they have the right to order tapping phones of government members or parliamentarians, but in political terms I do not see it likely.”
“Government members, deputies enjoy parliamentary immunity and for a legal tapping of a cabinet member or deputy as part of a judicial investigation, first there is a need to remove his or her immunity, Sariyar said. ''And when authorities would move forward with procedures to remove immunity, this investigation would have already become public.”
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