A stand against surveillance: European Court of Human Rights admits RSF complaints and sees potential for impact cases

In its complaints, RSF argues that journalists are still not adequately protected from surveillance by the BND. This particularly affects confidential communication with their sources: If these are monitored with spyware, intelligence agencies potentially have comprehensive access to everything happening on the device. Encryption would become ineffective. While strategic telecommunications surveillance does not capture content, traffic data - meaning who communicates with whom, when, how, and for how long - remains unprotected. Furthermore, journalists from both EU and non-EU countries are in a significantly worse position than their German colleagues.

The fact that the ECHR has served the complaints is in itself a success. Only about two per cent of all complaints filed with the ECHR even clear the hurdle of the court requesting a response from the opposing party. At the same time, the judges in Strasbourg have signalled that they may classify the complaints as test cases, so-called "impact cases," and expedite their processing due to their significance. The federal government is now required to respond to the complaints by October.

Spyware: A threat to trust and everyone's IT security

In its list of questions, the ECHR focuses not only on the specific potential legal violations resulting from the BND's actions. It also raises fundamental questions regarding the conditions under which, for example, spyware may be used. In doing so, the ECHR goes beyond the actual subject matter of the RSF complaints and seeks to determine from the federal government whether state access undermines the IT security of all users. It also seeks to verify whether the security vulnerabilities created or left open in this way can also be exploited by criminal networks. The Court thus views state surveillance in both cases as a potential security risk for everyone. The federal government has so far failed to implement a vulnerability management system, as demanded by the Federal Constitutional Court.

The first complaint, regarding the BND's use of spyware, is being brought by Berlin-based attorney Niko Härting as legal counsel for RSF Germany. Using spyware against journalists intimidates potential sources and thereby destroys the confidentiality of journalistic communications.

As a result, sources fall completely silent in the long run; the public thereby loses access to reliable information. Journalists do not have to be the actual target of the intelligence services: under certain circumstances, it may be enough to simply be in contact with a person who is being monitored by the BND.

Because those affected are usually not notified even after the measures have ended, they cannot prove the surveillance in court. Without this proof they are denied access to the courts. This complete secrecy violates the right to effective legal protection and essentially renders the intelligence services' far-reaching infringements on fundamental rights immune to any subsequent judicial review.

Inadequate implementation of landmark ruling by Constitutional Court

RSF is conducting the second case jointly with the Society for Civil Liberties (GFF) and Prof. Dr. Matthias Bäcker. In it, the complainants criticise the inadequate implementation of the constitutional requirements issued by the Federal Constitutional Court in Karlsruhe.

In a landmark ruling secured by RSF in collaboration with others, the Federal Constitutional Court had already ruled in 2020 that German intelligence services must respect the Basic Law even when abroad. However, in the subsequent reform of the BND Act, the Merkel government at the time disregarded these requirements. It failed to adequately remedy violations of telecommunications secrecy, the right to informational self-determination, the principle of equal treatment, and the fundamental right to IT privacy.

Journalists are still not adequately protected from surveillance by the BND, particularly when communicating confidentially with their sources. Nor are the results of journalistic investigations unequivocally off-limits to the BND. While German journalists enjoy a higher level of protection, those from elsewhere in the EU and beyond remain far more vulnerable to BND surveillance.

RSF has been fighting in court for years to establish a solid infrastructure for journalism

RSF advocates for understanding journalism as a fundamental social infrastructure: Its role is to provide reliable information, offer guidance, and enable democratic participation. Without this information infrastructure, public debates, political decisions, and social cohesion are weakened.

Journalists who fear they are being monitored can contact the Digital Security Lab at Reporters Without Borders (RSF). The staff there check devices for traces of known spyware.

In the World Press Freedom Index, Germany ranks 14th out of 180 countries.