Lawsuit over Afghanistan leaks ′infringement of free expression′ | Germany| News and in-depth reporting from Berlin and beyond | DW | 09.02.2017
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Lawsuit over Afghanistan leaks 'infringement of free expression'

Germany's government has sued a newspaper alliance for publishing confidential documents. One paper's editorial team was accused of copyright infringement. Arne Semsrott calls it an "infringement of free expression."

Comprised of 5,000 pages of internal documents labeled as confidential, the "Afghanistan papers" were German's first data leak. In 2012, parliamentary briefings were passed on to the editorial team of the Essen-based newspaper "Westdeutsche Allgemeine Zeitung" (WAZ). The documents contained reports on the Afghanistan War written for the defense committee of Germany's parliament.

The publication made it clear that German soldiers in Afghanistan's crisis regions faced greater risks than openly admitted to the public. The German government sued Funke-Mediengruppe, the owners of WAZ, over copyright infringement. WAZ removed the documents from its website but has already lodged appeals against two court decisions. The appeal proceedings will be held at the Federal Court of Germany and a decision is expected on June 1.

Arne Semsrott manages the website "" ("Ask the State"), which is a project run by the German branch of the Open Knowledge Foundation and advocates public access to information from state authorities.

DW: Mr. Semsrott, you have been following the case since the beginning. Why is the government suing Funke-Mediengruppe?

Arne Semsrott: The federal government is suing Funke-Mediengruppe for copyright infringement but you can also call it infringement of free expression because by applying copyright law, it has found a good way of removing unpleasant reports from the internet. The fact that it is at all possible to prevent the publication of such reports is a big problem for press freedom.

Why is the federal government suing for copyright infringement specifically?

Deutschland | Arne Semsrott (M. Reichert)

Semsrott says the government preventing publication is a problem for press freedom

The copyright law is the most promising one for the federal government. It is difficult to ban such documents using other means. Unfortunately, the copyright law is not from this century, but from the last and does not include exceptions for such documents. That is why the German government can say that the works they have created are covered by copyright protection.

The "Afghanistan papers" are the first publications that have been brought before courts with this legal strategy. Can a landmark decision be made in this case?

If the case ultimately goes to Germany's Federal Constitutional Court, then yes. I hope that happens. The obvious problem is the fact that the federal government is suing and is not ashamed of applying a law that was not originally drafted for such documents. It is not as though the German Army, the Bundeswehr, actually wanted to publish the documents in a book and now the potential income is no longer a possibility. This is about preventing unpleasant reports. Hopefully the courts put a stop to this and say that copyright infringement does not apply to such documents.

If you look at whistleblower Edward Snowden, or the German internet activists from "," do you think the exchange of confidential information between politicians and the public has changed?

The basic conditions have changed. Compared to 20 years ago, it is possible to publish large quantities of data and documents. It must be noted that the federal government, as a legislator, has failed to provide legal ways of allowing such data and documents to reach the public. If journalists can no longer do their work and publish documents like the "Afghanistan papers" then they must resort to leaking information in order to meet their journalistic obligations with respect to rights that guarantee press freedom.

The interview was conducted by Maximiliane Koschyk.

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