Months have passed since Albania’s prime minister stated he was suing the German newspaper Bild and journalist Peter Tiede in a German court over their publication of leaked prosecution wiretaps.
The wiretaps appeared to show senior Socialist officials engaged in rigging local elections in Dibra County in 2016 and later the general elections in 2017. The vote-rigging strategy included colluding with criminal groups to buy votes, intimidation of teachers to vote for Socialist candidates, and police preventing potential opposition voters from casting their vote.
After Rama announced he would be taking legal action in a German court, the Albanian media speculated that it would decide whether what was on the tapes was illegal or not. This is of course impossible, as the German courts have no jurisdiction concerning a possible breach of Albanian law. This left many wondering exactly what Rama’s grounds for suing Tiede and Bild would be. The last information Exit received was that Bild had ignored a legal letter sent by Rama’s attorney.
We contacted a law practitioner from Germany, Mr. Nils Bruckhuisen, to assess the case based on information available in the public domain. Bruckhuisen is a member of the Cologne Bar Association, and he represents clients in German courts. We asked him under what grounds Rama might be taking action and what are his chances of success.
From the point of view of a German lawyer, raised within a systematically codified legal framework, perhaps the most obvious question would be: is the freedom of the press, as guaranteed under Article 5 of the German constitution (“Grundgesetz”), outweighed by the respect due to the alleged status of the exposed tapes as still being under scrutiny by the Albanian Prosecutor General?
Furthermore, can the right to information of the general public under German jurisdiction, as construed by both the federal “Informationsfreiheitsgesetz” and the respective state laws, be limited when the alleged state interests of foreign nations are concerned?
Contrary to what the Albanian public has been led to believe, it is safe to assume the German public has a certain interest in the political developments in Albania, a candidate country struggling for years to enter the EU, a process that is partially funded by the German taxpayers. Albanian government officials have suggested that a German newspaper should have no interest in Albania’s state of affairs and that there must be a valid reason why they are “intruding”, going as far as to allege they are paid by the opposition. Bruckhuisen said he thought Bild had a genuine interest in the matter:
The repercussion of the Albanian PM’s legal case is obvious when the Bild headlines raise the question if Albania can be trusted to join the European Union. Matters of EU enlargement are of vital interest to the wider German public and are lively debated, sometimes very controversially so. Therefore it cannot be claimed that Bild has no genuine interest in covering a topic such as alleged vote rigging or electoral fraud in your country.
Though it might be said that Bild isn’t a publication that has a large focus on everyday politics and it certainly doesn’t have much of profile on foreign policy, it is the most read newspaper across Europe and the 16th in the world. That translates into quite some influence on public opinion and politics.
Legend has it that Bild can raise or sink even ministers of the federal government, as can be studied with the case of former Minister of Defense Mr. Guttenberg, who was hailed by Bild before they dropped him after a scandal involving him not declaring third party contributions to his own doctoral thesis (in the field of law by the way). Some claim as well, that Bild brought down former president Wulff.
While it is debatable that Bild would allow themselves to be bribed by the opposition of a small country on the edge of Europe, the importance of Bild should, indeed, interest the Albanian citizens.
Even if the outlet is to lose the court case, whatever the fine or reparations they’ll have to pay, will be a trifle compared to what they are worth. So, paying up a pretty penny is no problem for Bild.
For Albania it might be a different case, to be targeted by the most popular media across Europe, when trying to gain the support of EU countries to move up the ladder of the integration process.
Is it going to be a criminal or civil case?
The German lawyer suggests that it is “almost impossible” for the case to be taken up by a criminal court as the facts stand publicly.
Generally speaking, the hurdles of bringing a case about media releasing content before a criminal court are very high. One needs to establish, either an insult, the breach of a business secret or intruding data without any rights to it. The latter seems to be within reach in the case at hand, as all material seems to be of state domain and therefore can hardly be treated under business secrecy.
But it should be almost impossible to establish that the Bild journalist himself obtained the tapes from the prosecution. And releasing the content through their media, after somebody else removed it out of the prosecutor’s custody, is far from reaching any threshold of criminal law, compared to being the person that actually breaks the custody within the organization.
Following demands by the ruling Socialist Party, the Albanian prosecution office opened an investigation to find out who leaked the tapes within the institution. Furthermore, Dossier 339 and Dossier 184, the numbers assigned to the cases by the prosecution, had been a public knowledge for some time before Bild published what is considered a small portion of them.
Voice of America published a report by Klodiana Lala in January 2019, including bits of prosecution wiretaps. The prime minister dismissed the news and called the VoA a “trashcan,” his favorite word for the media he does not control. However, he did not sue them.
It would be very hard for Rama’s lawyers to establish in court that Bild journalist Peter Tiede was personally involved in obtaining the recordings.
To that effect, we can cite the latest decision of the Hamburg state prosecution, that decided to close the case against the person who published the video of the former Austrian Vice Chancellor Mr. Strache.
The much publicized video brought down not only Mr. Strache but eventually, the ruling coalition government in Vienna.
Mr. Strache had initiated criminal charges against the publisher house, which are now void. The prosecution announced that the publication of said video through the weekly magazine Spiegel and its online branch Spiegel online was lawful.
“The other option would be to sue in a civil court,” says Nils Bruckhuisen.
The possible claim on the part of the prime minister would be for Bild to release a statement where they refute allegations and admit the story was wrongfully portrayed. Rama would probably claim that Bild omitted part of the information, failed to publish the transcribed recordings in their full authenticity, reshaped their context or took liberties in interpreting them, knowing the consequences for those involved.
They could, otherwise, require remedies such as compensation payments. It is problematic for the claimant to actually make the quantity of such a compensation plausible. This might work for a company that lost revenue after a press article – but to value political goodwill in a court of law will be very onerous.
This case could also prove difficult for Rama because he publicly confirmed his voice appeared on the tapes and stated he would do it again in the exact same way, making it hard to doubt their authenticity.
For a more specific assessment we will have to wait until the actual charges brought by Prime Minister Rama against Bild are made public. However, one has to keep in mind that the free press in Germany is safeguarded, and that there is a very slim chance of the media to be held criminally or civilly liable.