Matthias Monroy

Linking is part of journalistic duties and therefore cannot constitute support for a banned criminal association, according to a court ruling on a raid and indictment. It dismisses charges against a radio editor and orders compensation.

The Karlsruhe Regional Court does not allow the charges against an editor of the Free Radio Dreyeckland (RDL). The Karlsruhe public prosecutor’s office had accused Fabian Kienert, a long-time employee of the independent radio station, of linking in an article to the internet platform „Indymedia Linksunten“, which was banned in 2017. In doing so, Kienert had supported a banned organisation, according to the prosecution. However, the court rejected this allegation. The linking was part of the journalistic tasks and therefore not a punishable support of a banned organisation, it said in a decision on Tuesday. The searches of the radio station’s homes and editorial offices ordered in January were also unlawful, concluded the Society for Freedom Rights (Gesellschaft für Freiheitsrechte e.V., GFF), which is supporting the editor in court.

„Linksunten“ had been banned in 2017 by the then Federal Minister of the Interior Thomas de Maizière ( Christian Democratic Union, CDU) under the Associations Act, as its purpose and activities were „directed against the constitutional order“. In July 2022, Kienert had reported on RDL’s website about the discontinuation of an investigation against the internet platform for „forming a criminal organisation“. The editor also linked to the portal’s website.

In its detailed reasoned decision, the Regional Court stated that in the specific case, the setting of a link did not constitute support for the further activity of a prohibited association. Links were common in journalism and belonged to the protected area of free reporting as laid down in Article 5 of the Constitutional Law.

„Hardly any delimitable promotion“.

Furthermore, there is no evidence that „Linksunten“ still exists at all, according to the decision, which is available to „nd“. Accordingly, an association that no longer exists cannot be supported. A „substitute organisation“ is also not recognisable; rather, it is very clear that the website has been online exclusively as an archive since January 2020, according to the court. This was also not claimed otherwise in the prosecutor’s statements and search warrants.

In its decision, the court also evaluates the RDL article from August 2022, which ultimately led to the raid. Among other things, the public prosecutor’s office had objected to its title „Left media work is not criminal!“. However, headlines are usually „abbreviated, provocative or even lurid in order to catch the reader’s eye“, the decision states. No criminal relevance can be derived from this, it says. The illustration (a house wall with the spray-painted slogan about „Linksunten“ could also „not be attributed to the author without further ado as corresponding to his opinion“.

The decision is also interesting from a internet-political perspective. „Based on a check using the so-called Wayback Machine“, the court also found out that the archive has been continuously accessible at https://linksunten.indymedia.org since 16 January 2020, it says. The providers also explained this in a „self-description“ of the same date. „In particular, the mere existence of the static archive is not to be regarded as a further operation of the original dynamic internet platform,“ the decision says.

In a longer paragraph, the ruling also deals with the type of mention of a link in the context of journalistic reporting. An actual link is possible, according to which a click is sufficient to reach the page, or only the mention of the web address, which still has to be copied into the browser. Also, only search terms such as „linksunten“ and „archive“ could be named, under which the website could finally be found. However, it would be „mere – hardly delimitable – fiddling“ if this had to be taken into account in the legal assessment of a link, the court explained.

State must pay costs

According to the decision, the defendants must be compensated at the expense of the state treasury. This also applies to the confiscation of a laptop, a mobile phone and six storage media, which took several days. All costs of the proceedings must also be borne by the state.

Because of the high importance for editorial secrecy and the protection of whistleblowers, the Regional Court also ordered the police to delete the copies made of the seized data media. In a statement, RDL demands that the deletion take place in the presence of data protection experts.

Whether the ban on „Linksunten“ violates the freedom of the press has never been examined by the courts. Corresponding complaints before the Federal Administrative Court as well as a constitutional complaint were dismissed on formal grounds. However, the ruling is likely to have consequences for the appeals filed by RDL and the journalists concerned against the search and seizure orders. The Regional Court has not yet ruled on this.

„The raid violated my privacy. And certainly journalists have been unsettled about how they are allowed to report on banned organisations,“ criticises Kienert, who was affected by the searches. „The investigation against Radio Dreyeckland should not have been initiated in the first place. There must be consequences,“ says the editor.

„State protection department with its anti-left agenda“.

„The decision is an important signal for free and critical press reporting throughout Germany,“ stresses David Werdermann, lawyer and procedural coordinator at GFF. Fabian Kienert’s defence lawyer, Angela Furmaniak, criticises a „politically motivated prosecution“ and is also pleased with the decision: „It is important that the district court has put the prosecution in its place. Criticising state action is the fundamental task of the press,“ she says. It is thanks to intimidation attempts like those against RDL that Germany is no longer among the top 20 countries in the press freedom ranking, explains RDL lawyer Lukas Theune.

The political evaluation of RDL’s work is the responsibility of the State Security Service, which is part of the State Criminal Police Office and reports to the public prosecutor’s office. It must have been clear to both that they were on extremely thin ice legally, assumes RDL managing director Andreas Reimann, whose private flat was also searched because of his function as a responsible person in terms of press law. „The State Protection Department with its anti-left agenda is a danger to fundamental rights and must be disbanded,“ therefore demands RDL managing director Kurt-Michael Menzel. The radio demands „a detailed political reappraisal of the case“, which constitutes an unlawful interference in the freedom of the press and broadcasting.

The public prosecutor’s office can appeal against the non-admission of the charges, which will then be heard by the Higher Regional Court.

Published in German in „nd“.

Image: The photo with spray-painted slogan about „Linksunten“ was used for the article, which lead to the raids (RDL).