Newsroom / Update: Media law - Gerald Ganzger in Horizont

Update: Media law - Gerald Ganzger in Horizont

What is the media law protection against prohibited publication?

Update: Media law - Gerald Ganzger in Horizont

The Code of Criminal Procedure provides for a number of special investigative measures that empower the public prosecutor's office (and the investigating authorities) with judicial authorisation to monitor and trace the communications of individuals. These measures are clearly a very strong intrusion into the private sphere and the lives of individuals, which is why the content that has been identified also requires special protection under media law. These measures include, in particular, the interception of telephone calls and the determination of the content of e-mails, as well as the optical and acoustic surveillance of persons using technical means, such as sound and video recordings, photographs, but also transcripts of the monitored telecommunications or acoustic surveillance. None of these contents of criminal investigation proceedings may be published before they are dealt with in a public trial if publication would violate the "interests of the person concerned that are worthy of protection".

This data subject is not only a suspect, but can also be a witness or a completely uninvolved person who only had contact with the monitored person by chance during the period of communication monitoring. As a rule, a violation of this prohibition will also occur in the case of completely anonymous reporting.

In any case, the interests of the person concerned are always worthy of protection if the information is from the highly personal sphere of life or the particularly protected private sphere. However, legitimate interests can also be violated by the publication of professional, business or company secrets which have come to the knowledge of the law enforcement authority in the course of these official communications monitoring activities. If such information or material from a criminal investigation is "leaked" or otherwise brought to the attention of a medium, this information may under no circumstances be published. Only after these contents have been discussed in a public main hearing does this prohibition under media law cease to apply. But even the discussion in a main hearing is not a carte blanche for publication, because the other protective regulations for content (for example, of the most personal sphere of life) continue to apply. If a medium violates this prohibition of publishing protected content from a preliminary investigation, the court can award compensation of up to 100,000 euros.

(Gerald Ganzger, Horizont 28. February 2020)