14 April 2023

Up Close and Personal

Has Matthias Döpfner been wronged? Should DIE ZEIT (€) not have done this? Is it illegitimate, if not illegal, to construct a portrait of a person from leaked private messages to unknown recipients, that cannot be read without a gagging feeling of abysmal embarrassment? Has the newspaper even, as some claim, damaged the freedom of the press?

Döpfner, CEO and co-owner of the media behemoth Axel Springer AG, is a fabulously literary figure: once a humanities scholar and music critic, he mutates into a billionaire corporate leader, receives a ton of shares by the founder’s widow out of sheer love as a presumably tax-free present, fires up the stinkiest of German newspaper publishers into a global digital media empire and wannabe No. 1 in the USA (“it’s not impossible!“) – what a story! All this against the backdrop of the affair about the former BILD editor-in-chief Julian Reichelt, journalistically probably the greatest contrast to humanities and music criticism imaginable, and the tender love between both men, which Döpfner had to hurriedly disavow after it turned out that Reichelt was sleeping with subordinates, a revelation that threatened to jeopardise Springer’s USA expansion plans. So much contrast, so many poles of tension, and to these is now added the contrast between the larger-than-life publishing visionary that Döpfner has staged himself as up to now and the pathetic human being who confronts you in the messages published by DIE ZEIT. What a fantastic story!

Contrasts, poles of tension, conflicts: that is what makes journalistic story-telling, which nobody knows or should know better than the CEO of Axel Springer AG. That the ZEIT scoop is irritating many seems to me to have other reasons. A notion of privacy plays a role in two respects. On the one hand, the chat messages were private, not meant for the public, naked and unprotected, with all the obscenities and spelling mistakes that one drunkenly hacks into one’s mobile phone at two o’clock in the morning; to expose them secretly and anonymously to the cold eye of the public does have an unpleasant revenge-porny tinge to it. On the other hand, the interest in the publication was at least partly private, not only on the part of the leaker, but also on the part of the medium used for the leak. Like the New York Times and the Washington Post before it, ZEIT also has an interest in ensuring that the Springer high-rise does not grow to the sky, and this interest is a private one.

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The press has a responsibility to ensure that diversity of opinion remains possible. That is what it enjoys special constitutional protection for. It may and should investigate stories, sharpen contrasts, poles of tension and conflicts and, of course, take a position and a side while doing so. But it must not allow itself to be corrupted. It must not bend its stories into lies for the benefit of certain private interests and preferences and channel the energy generated between its poles of tension to drive certain private engines.

Döpfner, the ZEIT reports, had urged BILD editor-in-chief Reichelt before the 2021 federal election to “do even more for the FDP” and to make sure that its vote share allows it to be so “authoritarian” (sic!) within the traffic light coalition “that it bursts”. Personally, I wouldn’t want to work for a publishing house where the owner sends me such emails. But then I’ve been out of the business for years now. Let’s assume, for the sake of the argument, that such a  message in favour of the Greens from the publisher to the editor-in-chief are common at DIE ZEIT: would that amount to the same thing?

Even if it did, I’d appreciate if it were immediately leaked and published somewhere. But it didn’t. There is a disastrous tendency, not only but especially in the German public, to confuse the defence of democracy and plurality of opinion with neutrality, equidistance and bothsideism. As if it were particularly democratic never to take sides and to adopt a superior, balanced and equilibrated position towards all contrasts, poles of tension and conflicts. I think the opposite is true.

Springer and its media are clearly positioned in the major political conflicts of our time. It is characteristic of these conflicts that the institutions and procedures that make plurality of opinion and the peaceful resolution of political conflicts possible are misused as weapons in them, and almost always by the right. It is also characteristic that this is accompanied by ear-piercing clamour that a coup and constitutional abuse from the left is imminent and that it is precisely this that justifies and makes necessary the constitutional abuse from the right.

If in this situation the top boss of one of the biggest and most powerful media companies in Europe keeps blathering about “coup”, about “collective loss of mind”, about “end point”, about “beginning of 33” – then I want to know. Then this is not private. That absolutely needs to be published. If this man urges BILD TV to do a story about the surveillance corporation Palantir, whose founder and Trump supporter Peter Thiel he fervently admires – that is absolutely newsworthy. If, after the temporary election of Thomas Kemmerich, Thuringia’s FDP 5 per cent short-time MP by AfD grace, the man informs his BILD staff that he considers the chancellor had declared her concern about that dismal episode a “nail in the coffin of democracy” – then the public absolutely needs to be informed. The fact that he calls the AfD “wankers” and is worried about the possibility of a majority for them and hopes that the FDP will “get voters from the AfD” does not comfort me one bit, on the contrary: I tend to be even more afraid of the supposedly gut bürgerlich libertarian conservatives who want to “get voters from the AfD” than of the AfD itself. Just as I am more afraid of Fidesz than of Jobbik, more afraid of the Tories than of BNP, more afraid of the Republicans than of the Aryan Brotherhood. (Which, of course, doesn’t mean that I am unafraid of all these).

This is not harmless, what Döpfner is saying. This is not just a guy who talks crazy when he thinks he’s not being watched, as we all do. This is what’s coming for us if we don’t fight.

The past two weeks on Verfassungsblog

… summarised by PAULA SCHMIETA:

On March 29, the UN General Assembly passed a resolution asking the ICJ for an advisory opinion on state obligations relating to climate change. KAREN C. SOKOL notes that this ‘is not just about Earth’s climate system’ but holds a ‘potential for [a] more equitable, just, and effective international governance’.

Reviewing two recent books on international humanitarian law, KAI AMBOS debunks the myth of the Geneva Convention as a liberal and inclusive project. It’s making, so Ambos, was ‘essentially a Eurocentric and imperial enterprise’. Considering the present, he takes the stand that humanitarianism ‘has increasingly become a “Western” post– or neo-colonial project’.

TOMASZ TADEUSZ KONCEWICZ shares an account of his recent trip to Israel. He went to Tel Aviv to tell ‘cautionary tales of anti-constitutional capture in Poland’ and then realised that the Israelis might ‘well teach Poles crucial lessons’ too.

Considering the rule-of-law violations in Hungary and Poland, KIM LANE SCHEPPELE & JOHN MORIJN outline what is known about the ‘complex set of funding suspensions’ by which the Commission intends to make Member States pay for violations of the rule-of-law. According to them ‘unlike anything else […] suspending large amounts of money has generated action.’

How can the EU fight illiberal regimes like those in Hungary or Poland? ANDRÁS JAKAB argues that the system of lead candidates for the European Commission should be reinstated. The EU already has the necessary means to fight semi-authoritarian regimes, so Jakab. ‘The slide of both countries into semi-authoritarian regimes is a symptom of the EU’s own constitutional weaknesses.’

On May 14th presidential and parliamentary elections will take place in Turkey. AYŞEGÜL KARS KAYNAR examines the plans of the opposition group ‘Nation Alliance’ for a civilian transition from executive presidentialism (back) to parliamentarism.

New actors and old problems? JAN BOESTEN illuminates the political situation in Colombia, where new armed non-state actors emerge that impede ‘Colombia’s otherwise vibrant democracy’.

Following the disqualification of the Indian opposition politician Rahul Gandhi, ANMOL JAIN reflects upon the state of the Indian democracy. His view is that it has reached ‘a new low’ and that court decisions like the one in Gandhi’s case ‘pose an existential threat to the survival of a healthy opposition in India’.

The promotion and protection of LGBTIQ+ rights is a highly contentious topic in Africa, where colonial impositions shaped the now dominant dual understanding of sexuality and gender. THOKO KAIME & ISABELLE ZUNDEL shed light on the Ugandan Anti-Homosexuality Bill and call for ‘human rights defender across the continent [to] anticipate [such] setbacks and plan for contingencies’.

Why is Taiwan excluded from the international community? CHIEN-HUEI WU & CHING-FU LIN argue that – apart from a political dimension – there is a legal aspect of the exclusion, which results ‘from constant misinterpretation – or more precisely, a calculated strategy of distortion by China – of UN General Assembly Resolution 2758’.

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FRANZISKA JOHANNA ALBRECHT examines what the recent coalition resolutions of the German government could mean for the protection of Germany’s biodiversity. She believes that biodiversity protection is also a form of freedom protection and finds that the coalition resolutions contain (too) much grey and (too) little green.

At the end of March, the BVerfG published a decision declaring the law against child marriages unconstitutional. RALF MICHAELS explains the judgment and calls for this to be taken as an ‘impetus for a major reform step’ that is tailored to the actual needs of minors.

Refugees are entitled to a weekly ‘pocket money’ to secure the minimum subsistence level. If this is not collected in person on time, the entitlement may lapse in the state of North Rhine-Westphalia. ROSA-LENA LAUTERBACH believes this to be not only an incorrect exercise of discretion by the authorities, but also disproportionate.

According to the BVerfG, (Bundestag) elections have an integrating function regarding the formation of the people’s political will. Seen from this perspective, the 5% hurdle combined with the abolition of the ‘Grundmandatsklausel’ by the new Federal Election Act is inappropriate, so LEO MÜLLER.

On the occasion of the interim report of the MEGAVO study, ANDREAS NITSCHKE examines the question of whether anti-constitutional behaviour in the civil service is a matter of isolated cases or an institutional problem. He says that the MEGAVO study does not help as far as institutional racism is concerned and that further research would therefore be desirable.

Clara Ponsatí, a Member of the European Parliament and Catalan separatist, was recently arrested in Barcelona and detained for two hours. ROHAN SINHA is of the opinion that this short detention casts a long shadow since it – in his view – violated Ponsatí’s parliamentary immunity.

The Italian Data Protection Authority has temporarily banned ChatGPT due to concerns that it violates the General Data Protection Regulation (GDPR). HANNAH RUSCHEMEIER explains the reasons for this ban. She thinks that the GDPR can only be one of several instruments to regulate AI. CHRISTOPH KRÖNKE assesses the action of the Italian authorities as follows: the Italian authority had ‘pointed out critical points’ but ‘overshot the mark’.

CHRISTIAN HEINZE assesses the ECJ’s decision C-100/21 on the diesel scandal, which was handed down in March. The decision has ‘brought the private enforcement of Union law […] to the core of private law’, so Heinze.

ZÉRAH BRÉMOND takes stock of the French law of vigilance which introduced a corporate duty of vigilance towards – among others – human rights and the environment. His conclusion: the law seems to partially work.

Contributions to our blog debate 50 Years On: Ireland and the UK In and Out of the EU in the past two weeks were written by COLM O’CINNEIDE, MICHELLE EVERSON, ALISON YOUNG, COLIN MURRAY, NIAMH NIC SHUIBHNE and SUZANNE KINGSTON.

That’s all for this week. Take care, see you next week, and, of course, please don’t forget to donate!

Max Steinbeis

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SUGGESTED CITATION  Steinbeis, Maximilian: Up Close and Personal, VerfBlog, 2023/4/14, https://verfassungsblog.de/up-close-and-personal/, DOI: 10.17176/20230415-070159-0.

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