Anti-Whistleblower Provision Buried In Germany's New Data Retention Law Challenged In The Courts

from the shh!-it's-a-secret dept

Back in 2015, we noted that there was a global move to strengthen laws governing trade secrets. Enhanced protection was something that was included in the mercifully dead TPP agreement, and may well crop up again in the bilateral trade deals that the US administration says it now wants to pursue in TPP's stead. One of the many problems with enhanced trade secret protection is that it can make whistleblowing more risky, since companies might try to claim that their right to preserve embarrassing secrets outweighs any public interest in revealing their dubious activities.

That was such a concern when the EU passed a new law protecting trade secrets last year that a group in the European Parliament drafted their own proposal for codifying whistleblower protection in the EU in order to highlight the issue. As well as this general concern about the status of whistleblowing in the EU, there are more immediate problems at the national level in Germany, as this post on the EDRi site explains:

Bundled with the controversial new German Data Retention Framework, which was signed into law in December 2015, the German parliament also passed a largely unnoticed addition to the Criminal Code that outlaws handling "stolen" data (so-called "Datenhehlerei"). In addition to the criminal liability, journalists are also no longer protected against search and seizure.

Prohibiting the trade in stolen data may make sense for stolen credit card information or login credentials. The new law, however, is so broadly worded that it also encompasses information "leaked" by whistleblowers, which is an obvious threat to the freedom of the press that systematically relies on such information. For example, under the new law, the documents leaked by Edward Snowden arguably can no longer be legally used on German soil.

While it may be doubtful whether any journalists or experts will actually be prosecuted, the law's greatest threat is its chilling effect: sources and experts will have to think twice whether to forward leaked data or help sift through them.

Fortunately, a German NGO has taken on the task of challenging this new threat to whistleblowers. The GFF (Gesellschaft für Freiheitsrechte/Society for Civil Rights) says its mission is to establish "a sustainable structure for successful strategic litigation in the area of human and civil rights in Germany and Europe." The EDRi blog post reports:

In December 2016, GFF and its partners brought a challenge against this law before the German Federal Constitutional Court in Karlsruhe, on the grounds that it is incompatible with the freedom of the press and with the principle of clarity of criminal provisions.

It's great that there is someone willing to stand up for whistleblowers, and regrettable that it's necessary. What's really needed is an EU-wide solution. Last month, the European Commission announced that it would use an impact assessment to begin exploring the possibility of bringing in new laws to protect whistleblowers. Unfortunately, that is likely to be a long, drawn-out process, and there's no guarantee that the final result will provide the protection that public-spirited whistleblowers deserve.

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Filed Under: anti-whistleblower, data retention, germany, leaks, whistleblowers