German Federal Constitutional Court to consider SLAPP against journalist

Marco Bras dos Santos

In November 2019, the action alliance Ende Gelände blocked coal excavators in an open-cast mine of MIBRAG. The coal company then took legal action not only against the activists, but also against others on the scene, such as the then press spokesperson of Ende Gelände, members of the Saxon state parliament and several journalists - very much in the style of SLAPPs, strategic lawsuits against a critical public. Marco Bras dos Santos, one of the journalist concerned, filed an appeal against this with the Federal Constitutional Court. The court is now dealing with the case.

Freedom of expression and the right to free journalistic reporting are elementary pillars of a democratic society. But these basic principles are increasingly under pressure, especially through SLAPPs - Strategic Lawsuits against Public Participation. SLAPPs are strategically deployed legal actions designed to intimidate critics and deprive them of publicity. An alarming example of the abuse of the legal system for this purpose is the case of journalist Marco Bras dos Santos.

Bras dos Santos accompanied Ende Gelände in November 2019 to report on their civil disobedience actions against the environmental devastation caused by lignite mining. He was then confronted with accusations of trespassing, which MIBRAG also had prosecuted - against a journalist who was exercising his freedom of the press and reporting on a protest action on site. His lawyer's statement of claim accordingly stated that this was a case of SLAPP.

Following his conviction by a local court in Saxony, journalist Marco Bras dos Santos has filed a constitutional complaint with the Federal Constitutional Court. He hopes for a landmark decision that can serve as a guideline for subordinate courts and authorities. Article 5 of the Basic Law, which gives journalists special protection in the exercise of their profession, is decisive for this. They must be able to report on events that are of public interest without fear of legal consequences.

Bras dos Santos positioned himself accordingly with regard to his conviction: "SLAPP lawsuits, which are directed against the press in the shadow of legislation, have had too little attention so far. I now hope for a citable handout from the Federal Constitutional Court for subordinate courts and authorities."

Matthias von Fintel, head of the department "Media, Journalism and Film" in the ver.di national executive board, also has a clear perspective on this case: "Journalists are particularly protected by Article 5 of the Basic Law in their exercise of their profession and must also go where others want to conceal something for reportage and research. The protest at the MIBRAG open-cast mine near Leipzig was an event that rightly had to be reported on. The accusation of trespassing is unjustified against a journalist reporting on this protest for the public. The appeal to the Federal Constitutional Court against the first instance court decision will hopefully have the expected success for press freedom."

Von Fintel is not alone in this view. A broad civil society alliance has been warning for some time that SLAPPs endanger essential fundamental rights and thus democracy. Christian Mihr, executive director of Reporters Without Borders in Germany and also part of the No SLAPP alliance, also warns: "Freedom of the press includes journalists being able to report freely and unhindered - also and especially on civil society protests. If they have to expect criminal consequences for their work, this has a deterrent effect. Media will then think twice in the future whether they can afford such reporting at all. That would be a fatal signal."

The case of Marco Bras dos Santos and the constitutional complaint to the Federal Constitutional Court are of crucial importance for the democratic public and especially for journalists and media workers in the face of increasing intimidation attempts. It is essential for a free, democratic social discourse that journalists are able to report on issues of public interest without fear of legal harassment.