This is a victory for the free press and the German public. The investigation, if permitted to continue, would have chilled and intimidated journalists from covering one of the most pressing issues of the day—i.e., mass surveillance of law-abiding citizens. As Netzpolitik journalist Andre Meister told EFF:
The secret services of the world need to be controlled and checked by all other pillars in society—executive, legislative, judiciary and the free press. Post-Snowden, it's undeniable that reporting on surveillance capabilities is integral for keeping those antidemocratic institutions at bay. Germany too needs a broader debate on its secret services.
After the investigation of Netzpolitik came under fire from the public, the German government scrambled to show its continued dedication to the free press. On Friday, July 31, 2015—soon after the investigation of Netzpolitik was confirmed in the press—Germany’s Justice Minister Heiko Maas told the chief federal prosecutor that he doubted the leaked documents constituted “state secrets” whose publication would endanger the security of the country. The next day, thousands marched in Berlin to protest the investigation, and on Monday, August 3, German Chancellor Angela Merkel issued a statement giving her “full support” to the Justice Minister.
But the chief prosecutor, Harald Range, doubled-down on his determination to proceed with the investigation, criticizing the Justice Minister for interfering with his investigation—a response which only further ignited public outrage. The Justice Minister ultimately fired Mr. Range over his handling of the case. At a press conference last week, the Justice Minister stated, “my trust in his ability to fulfill the office has suffered lasting damage[.]” And on Monday, August 10, the prosecutor’s office accepted the Justice Ministry’s assessment that Netzpolitik did not leak state secrets, officially terminating the investigation.
As we stated in our earlier posts, mass surveillance is a matter of public concern for which Netzpolitik should be commended—not punished—for covering. We’re glad the German government recognized this.
But as Netzpolitik noted in a recent post, the investigation of its sources remains pending—an investigation that threatens to chill future whistleblowing in Germany. Meister told EFF:
It's about time [the] ridiculous investigation into us as journalists was dropped, but the investigations into our sources are supposed to go on. We demand an immediate end to all investigations into press and their whistleblowers. Whistleblowers are integral for investigative journalism and they need protection not prosecution.
Whistleblowers are, and have been, critical for ensuring transparency and for revealing and preventing corruption, fraud, deception, and other wrongdoing—both by government and private actors—across the globe. International instruments aimed at combating corruption, such as the United Nations Convention Against Corruption, have recognized the importance of whistleblower protection laws. Article 33 [pdf] of the UN Convention Against Corruption provides that nations must consider incorporating laws providing for whistleblower protection—i.e., “legal measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention.” And as the Organisation for Economic Co-operation and Development (OECD), an international economics organization, has stated:
Whistleblowing is an essential element for safeguarding the public interest and for promoting a culture of public accountability and integrity.
Transparency International has also issued international principles for whistleblower legislation [pdf], which provide that whistleblower laws “shall protect the whistleblower against any disadvantage suffered as a result of whistleblowing. This shall extend to all types of harm, including dismissal, job sanctions, punitive transfers, harassment, loss of status and benefits, and the like.”
Germany “needs a whistleblower protection law up to international standards,” Meister said in an email. Indeed, stronger protection is needed across the globe. In the meantime, we hope Germany will drop any investigation into Netzpolitik’s sources.