Bild – Court Ruling (Germany, 2022)

On November 9, 1989, Günter Schabowski, member and spokesman for the Politburo of the Socialist Unity Party of Germany (SED - party in power in the eastern part of Germany during the cold war) read out the new travel regulations of the German Democratic Republic (DDR) at a press conference live on television. During the press conference he was asked by an Italian and German reporter about the date when the new regulations will come into force. Mr. Schabowski, looking a little perplexed at first, answers "To my knowledge - that is immediately, without delay". The new travel regulations allowed people to travel to foreign countries, especially Western countries, more easily than before. Immediately after the press conference thousands of East-Berlin's residents were flocking to the border, demanding their opening. The wall dividing Germany fell. The piece of paper, also known as the "Schabowski Note", from which Mr. Schabowski was reading the new travel regulations is now owned by the "Haus der Geschichte" Foundation in Bonn. The Foundation had bought the note in 2015 for 25,000 euros. The seller demanded anonymity, which the Foundation also assured him. But the path of how the note came to the first and later to the second seller, who sold it to the Foundation, is not completely clear. Mr. Schabowski´s family said that the Note was given to someone to take a closer look at it, but never given away permanently, they have asked the person to give it back, which did not happen. A journalist from the “Bild” Newspaper filed a lawsuit to disclose the wording of the agreement between the Foundation and the second seller and the name of both sellers. The Foundation refused to provide the information on the grounds that the seller had been promised anonymity as part of the contract. This provision was binding only between the second seller and the Foundation, the first seller did not insist on anonymity. The Administrative Court of Cologne (Verwaltungsgericht Köln - VG Köln) held that the Foundation was obliged to disclose the names of both sellers to the journalist, but not the wording of the agreement. The court reasoned that the journalist could invoke the right to information ("pressrechtlicher Auskunftsanspruch") under [https://www.gesetze-im-internet.de/gg/BJNR000010949.html Article 5(1)(S. 2) GG (German Constitution)] which outweighs the second seller's interest to anonymity. The fact that the foundation promised anonymity to the second seller cannot derogate the journalist's right to information. The court also found that GDPR does not prevent the claimant from exercising their basic right. In this regard the court referred to Article 6(1)(f) GDPR to highlight this point, although not directly applicable to public bodies. Eventually, the court held that the Foundation was not obliged to disclose the wording of the agreement with the second seller because this would amount to an access to files, which is not covered by the right of the press to information.