Prof Niko Härting

The latest podcast with Stefan Brink and Niko Härting is about freedom of expression. Firstly, we talk (01:02) about the Distance Learning Protection Act (FernUSG). Last year, the Federal Court of Justice caused considerable unrest (judgement of 12.6.2025, ref. III ZR 109/24 7.8.2025), because some people deduced from this that each of these events required approval under the FernUSG. Now the BGH (judgement of 5 February 2026, case no. III ZR 137/25) has clarified: The FernUSG is to be interpreted by means of a teleological reduction to the effect that the teacher and the learner are only to be regarded as spatially separated and the law only applies if "no synchronous communication" takes place. Great. Next up (12:26) is the new book by Ronen Steinke, senior editor in the politics section of the Süddeutsche Zeitung. "Freedom of opinion: How the police and judiciary are restricting our fundamental right - and how we are defending it" was published at the end of February. He is concerned with the question of why the number of prosecuted expression offences in Germany has been steadily increasing since 2015 - among other things, there is a new offence of insulting politicians in Section 188 of the German Criminal Code - and what this means for our democratic community. Finally (35:40), we discuss two favourable decisions by the Federal Constitutional Court of 11 and 16 December 2025, which classified the acceptance of insults by specialist courts for so-called defamatory criticism as a violation of Article 5 of the Basic Law. So much freedom of expression was rare - so no reason to say goodbye to it after all!

In the election year 2026 of all years, numerous cultural organisations in Berlin are currently receiving mail from Investitionsbank Berlin (IBB). Five years after the coronavirus lockdown, IBB is demanding the money back that Senator for Culture Klaus Lederer used to ensure the survival of many of Berlin's cultural venues in 2020/21. The IBB's tone is gruff and the deadlines set are short. Many of the reclaims are unlawful and the Senate has so far remained silent on IBB's shirt-sleeved practices.

The "Schabowski" case of the OVG Münster is going to the Federal Administrative Court! The proceedings revolve around Günther Schabowski's famous speech at the press conference on 9 November 1989. Who did the Haus der Geschichte buy this note from? A journalist from the BILD newspaper sued the museum on the basis of the right to information under Article 5 of the German Constitution. The OVG Münster accepted such a claim, rejecting it and basing its decision on the grounds for refusal of the IFG and Art. 86 GDPR. The Haus der Geschichte is now appealing. From minute (20:39), Dr Stefan Brink and Prof Niko Härting talk about the resolution paper of the Data Protection Conference on the P20 Data House, a federal-state project on the IT infrastructure of the police. The paper criticises in particular the lack of a legal basis for the planned IT architecture. Finally, from minute 30:13 onwards, the AI tool Microsoft Copilot is discussed. Copilot is not actually allowed to access files labelled as confidential; however, such access did take place. Stefan and Niko shed light on the consequences under data protection law and finally land on the keyword of digital sovereignty.

Starting at minute 01:41, Dr Stefan Brink and Carl Nowak talk about the unsuccessful attempts of a journalist to obtain the Kohl files, which are in the possession of the widow Maike Kohl-Richter. Unfortunately, it is almost a habit in Germany for outgoing members of government to take files home instead of handing them over to the Federal Archives. Does the Freedom of Information Act impose an obligation on public authorities to retrieve "lost" files? Afterwards (14:14), Stefan and Carl talk about an increase in data protection submissions from 2024 to 2025 to the Berlin Commissioner for Data Protection and the Lower Saxony State Data Protection Commissioner. What could be the causes? Finally, from minute (30:00) onwards, an ECJ ruling from 29 January C-291/24 on the EU Money Laundering Directive is discussed. This concerned the legal requirements in Austrian law regarding the liability of a legal entity for compliance violations. What does this decision have to do with data protection?

Dr Stefan Brink and Prof Niko Härting begin by discussing a forthcoming amendment to the BND Act on the occasion of an FAZ article by Thorsten Frei. For Härting and Brink, this is met with "civil rights displeasure". They recognise numerous breaches of taboos, such as the abandonment of the separation requirement, according to which information gathering and police powers are traditionally to be kept separate in German intelligence services. From minute (02:05) onwards, the two take a critical stance on the proposal to remove the control function of the Federal Intelligence Service from the Federal Data Protection Commissioner. From intelligence service to transparency: From minute (17:55), Härting and Brink discuss the ECJ decision of 15 January 2026 - C-129/24, in which numerous requests under the Environmental Information Act were made against an Irish forestry company. The forestry company refused to provide information as the requests were all made under pseudonyms. Can national law require identification for environmental information requests? Finally, from minute 28:51 onwards, the ECJ ruling of 18 December 2025 - C-422/24 is discussed. Ticket inspectors were equipped with bodycams in Stockholm's public transport system, passengers were not informed about this. The Swedish supervisory authority therefore issued a fine on the basis of Art. 13 GDPR. Is this really a case of Art. 13 GDPR or is Art. 14 GDPR (including exemptions in paragraph 5) relevant?

The Distance Learning Protection Act (FernUSG) dates back to 1977 - and was originally intended to regulate distance learning courses where communication was conducted in analogue form by post. Today, the law is still highly relevant for providers of digital training or coaching. In two recent decisions (BGH of 12 June 2025 - III ZR 109/24 and BGH of 2 October 2025 - III ZR 173/24), the Federal Court of Justice confirmed a broad interpretation of the scope of application of the FernUSG. The FerUSG already applies if providers use keywords such as "graduate" or "course" in the course description. Furthermore, entrepreneur contracts are also covered in principle.

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.

American journalist Jeff Javis is Niko Härting's guest in episode 76.

Every Year the International Bar Association hosts an Annual Conference; this year 2022 in Miami, FL. HÄRTING was represented by Marlene Schreiber, Niko Härting and Martin Schirmbacher.