Frank Bräutigam (2023): Recht richtig formulieren. Ein Handbuch mit Beispielen aus der journalistischen Praxis. [How to Correctly Phrase Legal Matters. A Manual with Examples from Journalistic Practice] Tobias Gostomzyk; Uwe Jürgens (eds.) (2023): Böhmermann, Künast, Rezo. Medien- und Internetrecht in 20 Fällen. [Twenty Cases from Media and Internet Law]

Reviewed by Tanjev Schultz

A journalist cannot be an expert on everything. But certain deficits quickly become embarrassingly obvious. If a publication gets its math wrong because it attracts staff who are averse or straight up hostile towards numbers, things can get awkward. And a newsroom that doesn’t have a single staff member with basic legal knowledge – that is plain negligence. Almost every relevant topic has a legal side to it, and many public debates concern issues that are fundamentally legal matters.

Journalists should not be daunted by legalese. Contrary to widespread preconceived notions, many rulings, especially those issued by the German Federal Constitutional Court in Karlsruhe, are quite a smooth and compelling read. In addition, there are textbooks that are accessible for people outside the legal profession, too. Here are two books that fall into this category: A new handbook by ARD journalist Frank Bräutigam on how to correctly write about legal topics, and the volume Böhmermann, Künast, Rezo, published by Dortmund-based media law professor Tobias Gostomzyk and Uwe Jürgens, legal adviser to Der Spiegel.

Bräutigam’s book explains key legal terms, facts, processes, and institutions which routinely, but not always correctly, appear in media coverage. It describes typical situations the sports world would call »set pieces« (p. VI). In fact, at some point of their career, every journalist will be confronted with articles about a legal investigation, and even when editing agency texts at the newsdesk. In that case, it would be helpful to understand the inner workings of such an investigation, or the exact definition of an arrest or a search warrant and how they are issued. This book explains these matters clearly, concisely, and precisely.

Investigations often entail lawsuits. Frank Bräutigam describes the stages of a court case and the appeal process. What is an appeal? What is a revision? What are the specifics of juvenile criminal law? Rather than intimidating his target group with an extensive bibliography, the author, who is a Doctor of Law, provides examples from journalistic practice and essentials for everyday reporting. What is the difference between murder and manslaughter? If you ask people on the street (the author was tactful enough not to write »if you ask journalists«), the answer usually goes: Murder is premeditated (or planned). Manslaughter occurs in the heat of the moment. »Please remember: This is wrong! The correct distinction is: The basis for murder and manslaughter is the same: A person was killed intentionally. Intention can mean premeditation. However, it is sufficient for the perpetrator to consider the other person’s death a possibility, and to ›condoningly accept‹ that possibility.« (p. 65).

Murder requires so-called characteristics of murder, such as greed or malice. Another possible characteristic is the ›intention to conceal‹. Whenever Bräutigam introduces a cumbersome legal term, he offers an example: The point here is to kill someone in order to cover up another crime, »For example: In the case of the police murder in Kusel in Rhineland-Palatinate, a policewoman and a policeman had allegedly caught the main defendant and his accomplice while poaching at night. According to the court, he shot the two officers so his criminal poaching would not be exposed« (p. 65).

In other chapters, Bräutigam draws a basic outline of the German security architecture (the role of the Federal Public Prosecutor’s Office in cases of terrorism and espionage), explains the importance of civil law, the administrative courts, and the supreme federal courts, including Federal Constitutional Court and the European courts, as well as basic features of international (criminal) law, which is important not least because of the current situation in Ukraine. None of these explanations is meant to be in-depth; nor is the purpose of the book to advance a scientific discourse. Its point is to help improve the quality of media coverage. Seemingly simple errors such as misused terms (for instance, saying »search warrant« instead of »search ruling,« or using inappropriate symbolic photos, such as a gavel hitting a judge’s desk, which is not a common practice in Germany, expose journalists as legally incompetent. This is why the book, which was published in Springer VS’ yellow practical series, comes straight to the point by listing 15 useful rules. They are about common linguistic pitfalls, for instance, the fact that in German criminal law, a person is not »sued,« but »charged«; the correct German phrase for a life sentence is »lifelong,« not »for life,« and that is is unhelpful to mention the maximum sentence for a crime early in a case because it is rarely imposed. At the end, Bräutigam offers some practical tips, including court accreditation procedures and how to research legal cases. I recommend this book to any journalist. It can also be used as a reference and lends itself well for teaching at universities and schools of journalistic practice.

Böhmermann, Künast, Rezo, on the other hand, probably caters mainly to lawyers, yet it is also relevant to journalism; particularly for researchers working on topics such as freedom of the press or broadcasting systems. The editors selected 20 high-profile cases pertaining to media and Internet law: treason charges against two journalists from, viral footage of a man in a patriotic hat raging against a camera crew at a protest in Dresden; or the »Brender case« at the ZDF and the question what, if any, amount of political and state influence on public broadcasting is appropriate. Then, the book delves into the three cases that gave it its title: the insult poem by Jan Böhmermann railing against the Turkish President; Green politician Renate Künast fighting back against insults on the Internet; and YouTuber Rezo’s viral video »The Destruction of the CDU«, which caused a huge political stir.

The innovative aspect of this book is its approach of outlining each case in a comprehensible, rather journalistic way. The texts were authored by (former) journalism students from Dortmund. The general outline is followed by a short interview with a key actor in the case, such as journalist Arndt Ginzel, who was covering the Dresden protest on behalf of the ZDF; or Claus Kleber discussing the dispute over the editor-in-chief appointment in the »Brender case«. Experienced lawyers then present professional legal solutions to these cases, following legal usage in structure, language, and source work. This is not only compelling for law students and legal professionals, but offers great insights into legal argumentation to anyone who is interested.

The book’s systematic approach is impressive and useful to train and inspire non-professionals in the basics of legal enquiry. Michael Libertus, for example, walks readers through the possible legal implications of news coverage of the infamous »Ibiza video« featuring Austrian FPÖ politician Heinz-Christian Strache. He distinguishes two levels of action that each involve civil as well as criminal aspects: First, the act of recording and passing on a secretly captured video; second, disseminating excerpts of the video and the subsequent media coverage. He very clearly explains the outcome of this case: Public interest in this information was so great and justified that it made its publication legally acceptable.

The book is also valuable because it addresses a number of scenarios that did not result in court decisions, but which are nonetheless highly relevant from a legal and journalistic point of view. For instance, the investigations against journalists of did not result in an indictment, but in the ousting of Attorney General Harald Range. Jan-Hendrik Dietrich’s solution to the case suggests that political reasons took precedence over legal grounds and that the journalists were lucky it did not come to court proceedings because the two »bloggers« did indeed publish a state secret (classified information from the German domestic intelligence services). Their actions might well have been considered a felony. Really? There are other takes on this, not only from a journalist’s point of view.

Dietrich is a professor of constitutional and administrative law at the Intelligence Services Department of the German Federal University of Public Administration. He also serves as director at the Center for Intelligence and Security Studies at the University of the Federal Armed Forces in Munich. It is thus unsurprising that he would side with domestic intelligence. He undeniably makes valid legal points and a solid case, but from a perspective of press freedom, and given the problematic nature of classified information, the case could have been weighed and assessed differently. In this context, it is no small detail Dietrich refers to the journalists in question as mere »bloggers«. The preceding interview with founder Markus Beckedahl shows that this »blogger«-label corresponds with the position of the German domestig intelligence services, even though Beckedahl and his colleague had long been established members of Berlin’s press community at the time of the investigation.

It would have been useful to make it clear that there are alternative, equally justified assessments of some of the »case solutions« presented in the volume. It would also have been interesting to juxtapose diverging solutions (not in undisputed cases, of course). Other than this, it is a book worth reading, offering valuable hints for the practice and study of journalism.

About the reviewer

Tanjev Schultz is Professor of Foundations and Strategies of Journalism at Johannes Gutenberg University Mainz and co-editor of Journalistik.

About the books

Frank Bräutigam (2023): Recht richtig formulieren. Ein Handbuch mit Beispielen aus der journalistischen Praxis. [How to Correctly Phrase Legal Matters. A Manual with Examples from Journalistic Practice] Wiesbaden: Springer VS, 178 pages, EUR 37.99.

Tobias Gostomzyk; Uwe Jürgens (eds.) (2023): Böhmermann, Künast, Rezo. Medien- und Internetrecht in 20 Fällen. [Twenty Cases from Media and Internet Law] Frankfurt/M.: Fachmedien Recht und Wirtschaft, 552 pages, EUR 39.