Fabian Kienert did not support a forbidden organisation by posting a hyperlink to a static website. In his verdict, the judge endorses journalism.

“Banning a medium because it publishes criminally relevant content is roughly the same as a journalist being suspected of terrorism because he interviews Edward Snowden.” This statement of solidarity was published by Freiburg-based Radio Dreyeckland on its website a few days after the internet platform linksunten.indymedia.org was prohibited by the then German Minister of Interior..

Seven years later, the non-commercial radio station itself became the target of state repression in the same matter: the long-standing editor Fabian Kienert is alleged to have supported the website, which was banned under association law at the time, with a hyperlink, according to the charges brought by the Public Prosecutor’s Office before the Regional Court in Karlsruhe.

In a message on the radio website, the now 38-year-old had referred to a static copy of “Linksunten”, which is hosted on servers in North America. Ironically, this report was about the discontinuation of an investigation into the formation of a criminal organisation (Section 129 of the German Criminal Code). The Public Prosecutor’s Office wanted to find out – unsuccessfully – who was behind “Linksunten”.

With his link to the open posting website, on which users could create content without registering, Kienert had advertised and promoted the organisation – in the opinion of the investigating public prosecutor Manuel Graulich an act of support under Section 85 of the German Criminal Code. In doing so, the accused had also condoned criminal offences, Graulich thinks.

The editor was acquitted of all these charges in Karlsruhe today. This is what Kienert’s defence lawyer, Angela Furmaniak from Lörrach, had previously demanded. Freedom of the press and freedom of opinion are constitutive for a democracy and her client had contributed to this with his work, according to the plea. The public prosecutor’s office, on the other hand, wanted Kienert to be sentenced to 90 daily rates of €40 each.

The article with the link did not constitute support for the continued operation of the banned association, explained presiding judge Axel Heim, and made it clear: “A critical journalist must be allowed to criticise prohibitions”. It was clear from the previous days of the trial that Heim would not agree with the prosecution. The allegations of the Public Prosecutor’s Office were made “out of the blue” and “at random”, explained the court, for example, when rejecting a motion for evidence.

In this motion, Graulich had requested that devices seized during a search of Kienert’s home, including SIM cards from mobile phones and a laptop, be forensically examined. However, the presiding judge explained that introducing Kienert’s digital address book into the trial would devalue the freedom of the press and broadcasting. The defence had previously threatened to file an urgent application with the Federal Constitutional Court to protect editorial secrecy and whistleblowers if permission was granted for such an analysis.

Judge Heim already considered the search of Kienert’s home to be questionable. The Public Prosecutor’s Office had 26 photos taken in his home. At most, nine of them were relevant to the investigation, the judge noted. Kienert is appealing against the search to the Federal Constitutional Court.

At one point, Graulich even wanted to accuse the editor and the free radio station of direct involvement in “Linksunten”. He argued that it was conceivable that the radio station had employed the creators of the banned website as editors.

A key question before the Regional Court was whether the association, which was banned in 2017, still existed, meaning that it could be supported at all. In the oral judgement, Judge Heim explained that the existence of the archive page alone did not prove the continued existence of the association.

Yesterday, Kienert had the last word in the trial and pointed out the strain of the nine days of the trial, during which he was also unable to pursue his journalistic work. “Even an acquittal does not heal the damage done,” he said in his statement. Such repression could also affect larger media outlets if, following a shift to the right, “more people with decidedly right-wing views push their way into the various institutions”, warned Kienert.

The court also ruled on Thursday that the editor would be compensated for the search of his home and the confiscation of material. However, the judgement is not yet legally binding. After the written statement of reasons in a few weeks, the parties involved in the trial can apply for an appeal before the Federal Court of Justice.

Published in German in „nd“.

Image: Demonstration in solidarity with the accused editor in Freiburg city centre (Radio Dreyeckland).