The research group “Correctiv” had, together with other media partners, the so-called Cum-Ex-revelations of a billion-dollar tax fraud in at least ten European countries revealed. Now it is known that the Hamburg public Prosecutor’s office determined against editor-in-chief Oliver Schröm,he is accused of inciting to treason, of operating and business secrets. In an open letter Correctiv known “” the investigation against Schröm as an “attack on our freedom of the press” and urges in a Petition to discontinue prosecution. The Dortmund-based media legal scholar Tobias Gostomzyk explains the legal basics.
To the Person Judith pointed recker/ University of Dortmund, Tobias Gostomzyk teaches since 2012 as a Professor for media law at the University of Dortmund. His current research focuses, among other things, the digital update of the media law, communication, fundamental rights in the change, as well as normative Standards in the field of network communication.
MIRROR ONLINE: when allowed to take the Prosecutor’s investigation for incitement to the betrayal of business and trade secrets and unauthorized exploitation? There is no need for a display?
Tobias Gostomzyk: no, a criminal complaint is not necessary. Rather, there is an initial suspicion must exist. This requires, in particular, that there is sufficient evidence for a criminal Offence.
MIRROR ONLINE: where can such a suspicion? Can Express any and then it is determined?
Gostomzyk: once the office of the public Prosecutor must have the Existence of a possible Crime knowledge. This is done on a regular basis – but not only – by a criminal complaint. A complaint will be made, identify the law enforcement authorities with an open mind as to whether in fact there is an initial suspicion exists, and whether this is confirmed or not.
MIRROR ONLINE: To which evidence of a criminal Offence, it could be in the specific case of the “Correctiv”editor-in-chief?
Gostomzyk : I don’t know the investigation file of the Prosecutor’s office in Hamburg. Basically to say the following: It may well be permitted, that the media, on business or trade secrets of company reports, although these are not legally protected. This applies in particular if this results in violations of the law. This can be included in the documentation of the Cum-Ex-transactions in the case. However, it is necessary, as these documents go to the media.
MIRROR ONLINE: What do you mean exactly?
Gostomzyk : Can someone media documents as a Whistleblower to come without being asked, then the media are not involved in the breach of the law immediately. Rather, the companies get internals to the editorial review on the Desk. Now you have to say – roughly – the interest of the Public in regard to these documents, on the one hand with the company’s interest in confidentiality, on the other hand, weigh. Only if the public information outweighs the interest in recognizable, should the media publish this information. Differently it looks, if the media incite someone in advance for the illicit theft of business and trade secrets – for example, in exchange for a counter performance. Because of their own involvement in criminal activities by journalists in the service of an reporting, the legal system approves only in cases of a few, in individual cases, evaluating the exception.
MIRROR ONLINE: What exactly is there to rate?
Gostomzyk: Whether it was a criminal rather passive you begin taking or a criminal rather active incitement. Often this is to determine, in retrospect, are difficult for the investigating authorities. This, however, is – simply put – legally.
MIRROR ONLINE: Makes use of the informer is also liable to prosecution?
Gostomzyk: The Informant may be subject to prosecution. The results from the corresponding provision of the competition law. In the future, informants should be protected according to the law on the protection of trade secrets better, if the disclosure of business and trade secrets for the protection of a legitimate interest. This can’t followed be the detection of illegal acts when the is a business secret of the disclosing Person, in the intent to protect the public interest – private interests.
MIRROR ONLINE: Limits of such a law, not journalists, in their search options?
Gostomzyk: , The legal system tries to set the different interests to balance. Also, the freedom of the press is venturing sometimes to the limits. Under current law, it is – as I said, the ways of business and trade secrets directed to the media.
MIRROR ONLINE: what is the further procedure looks now?
Gostomzyk: An investigation means first of all that results will be openly determined. The office of the public Prosecutor of Hamburg has to be lens. At the end of the investigation could be set procedures or charges will be collected.
MIRROR ONLINE: What threatens the “Correctiv”editor-in-chief Oliver Schröm specifically?
Gostomzyk: The penal code for inciting a maximum imprisonment of three years. In addition, legal claims, in particular claims for compensation are civil, not exclude – and could, in the specific case of the banks and enormous.