Reporters Without Borders e.V. (RSF), represented by us, has lodged a complaint with the European Court of Human Rights (ECtHR) in Strasbourg. The organisation is challenging the use of state trojans by the German Federal Intelligence Service (BND). State Trojans are spyware that is installed on the target’s computer or smartphone without their knowledge.
Background: RSF against surveillance measures by the BND
RSF documents violations of press freedom and freedom of information worldwide and raises the alarm when journalists are in danger – whether because they are working in the midst of armed conflicts or uncovering corruption and serious human rights violations. There is an undeniable risk that the communication partners of RSF employees could fall into the BND’s crosshairs and be monitored by the BND using state trojans. Due to this potential surveillance of their correspondents, RSF employees must also expect to be indirectly affected by surveillance measures.
Legal loopholes in the protection of journalists
Unfortunately, those affected are generally not informed of surveillance measures. Nevertheless, the German courts required RSF to prove that it was the target of a surveillance measure – a devil’s proof given the lack of notification of those affected. They therefore declared RSF’s appeal inadmissible. This is contrary to the principle of effective legal protection:
“The secret service can secretly monitor journalists using Trojans without the person concerned ever finding out about it. There is no legal protection against this in Germany if the person concerned continues to be required to provide evidence of surveillance. This is not befitting of a democratic constitutional state and violates human rights”
– Prof Niko Härting, complainant lawyer for RSF
Complaints to the ECtHR as a way to protect human rights
This is the second complaint that we have submitted to the ECtHR on behalf of RSF. In the first case, we were already able to achieve an interim success by having it accepted for decision by the ECtHR in 2021 – but a decision is still pending.
You can find a detailed article on RSF’s current complaint here.