German High Court: Federal Agency Has Right To Denounce Critical Science Journalists

  • Date: 06/03/17
  • Michael Miersch, Deutsche Wildtier Stiftung

A German High Court has decided that the Federal Environmental Agency has the right to publicly denounce science journalists who report critically about climate issues.

ZEIT

In the US, government agencies are calling some journalists “Fake News” in order to discriminate against them. In Germany that would be impossible, right? Wrong. A federal agency, which is under the responsibility of the Ministry of the Environment, has attacked journalists in the same way. Unfortunately, however, there is no court in Germany to protect the freedom of the press.

What happened?

On 2 February 2017, the High Court of Magdeburg (OVG) reached a decision in the lawsuit “Miersch v. Bundesrepublik Deutschland” (file 3 L 44 / 16.Z) and rejected my appeal against the sentence of the Administrative Court of Halle from 18 November 2015.

This decision is final. Since the start of the procedure, almost all observers were convinced that the disputed action of the German Federal Environmental Agency (UBA) would not stand in the courts. However, now the Government agency has won in court.

What is this all about?

In 2013, the German Federal Environmental Agency (UBA) published a brochure entitled “And Yet It Is Warming”. The brochure stated that, unfortunately, there were scientists and journalists who spread untruths about climate change. In addition to a few others, I was mentioned (at the time, I was the science editor at the German weekly magazine FOCUS). Specifically, my articles were accused of “not agreeing with the state of knowledge of climate science” (page 112).

The brochure called me a “climate change sceptic” [Klimawandelskeptiker]. In other sections of the text, the machinations of climate change sceptics were presented as dishonest. The brochure also accused climate change sceptic of being paid lobbyists of the oil industry. I sued against this defamation, initially with Dirk Maxeiner, who later gave up when the costs of the lawsuit became more and more oppressive.

On 18 November 2015, the first chamber of the administrative court in Halle (the action took place there because the UBA is located in Saxony-Anhalt) decided that the comments in the brochure were not exaggerated. The classification of journalists was in line with the task of the UBA to clarify environmental issues. The assertion that climate change sceptics were impure and paid by the oil industry would not refer to me as they were further in the text and are not directly linked to my name.

In light of the court’s decision, I submitted the application for appeal to the Magdeburg High Court, which has now been rejected.

How does the High Court justify its decision?

The decision by the Magdeburg High Court is fully in line with the sentence of the Administrative Court of Halle. It says that the German Federal Environmental Agency (UBA) had the right to impute that I had reported contrary to the “state of scientific knowledge “. It was also the right of the Government to counteract “post-factual discourse” (page 13 of the explanatory statement). With “post-factual discourse”, they mean my articles. It is also allowed for the Federal Environment Agency to classify me as a climate change sceptic.

Why is this relevant?

The High Court’s decision establishes a precedent. With the same right, the Ministry of Economics could denounce its critics as writing “contrary to the state of economic knowledge “. A journalist who is not in good standing with the Ministry of Health would then be one would reported “contrary to the state of medical knowledge”.

“The role of a government agency is not to brand critics of government policy as dissenters”, the German Association of Journalists (DJV) said when the UBA brochure was published. Its chairman asked the then Federal Environment Minister, Peter Altmaier, “not to further distribute the brochure in the present form, and to apologise to the colleagues concerned”.

Altmeier did not apologise, and the brochure is still widely disseminated by the Federal Environment Agency. Like other observers, the German Association of Journalists was confident that the courts would decide against the UBA.

What does the Bavarian Association of Journalists say about the High Court decision?

Jutta Müller, the Managing Director of the Bavarian Association of Journalists (BJV), to whom I belong, wrote to me: “It seems that the court did not sufficiently appreciate the aspects of freedom of the press and the value of free journalism independent from the influence of the state. An incorrect signal was set. It is important to remain vigilant when journalistic action is evaluated by the authorities and thus ultimately restricted. ”

What is the UBA brochure?

The 122-page publication was published in May 2013 and is still available on the UBA’s website. In 23 chapters, it conveys the views of the IPCC (Intergovernmental Panel on Climate Change) and the PIK (Potsdam Institute for Climate Impact Research) on climate change. Leading representatives of the PIK are often quoted and their statements presented as unquestionable state of climate science.

Five chapters are devoted to so-called climate sceptics, which according to the brochure are all those who doubt the validity of PIK’s and IPCC’s views. Climate sceptics are presented as disreputable persons with an irresponsible agenda. The readers get the impression that all criticism of the PIK or the IPCC is controlled by the oil industry.

In the brochure, these allegations are mainly based on publications by the Union of Concerned Scientists (UCS), an American activist organization that is committed to lobbying for green policies.

Who are the authors?

The main author of the brochure is the UBA’s department head Harry Lehmann. He belongs to the “Association of friends and sponsors of the Potsdam Institute”. According to its statutes, the Association is to support the PIK “mainly through the procurement of funds”.

According to FOCUS research, the UBA has awarded a dozen research contracts worth a total of around 2 million Euros to the PIK, but has not been invited tenders from anywhere in Europe, as required by the law.

The awarding practice of the UBA is “a massive and conspicuously frequent infringement of the law,” says legal expert Heiko Höfler. The UBA is defending the controversial grants by saying that they have been subject to a “derogation”. Höfler does not believe this: “This is not foreseen under the terms of contract by the Agency. There is a lot of evidence that it is a matter of protection. ”

Harry Lehmann has worked for the lobbying company Eurosolar for many years and reached the position of “European Vice-President”. From this position, he then switched to a position of head of department in the UBA in 2007.

The other three authors are also not climate scientists.

Reactions when the UBA brochure was published in 2013

Immediately after the publication of the UBA brochure, many editors showed solidarity with the denounced journalists. To my delight, it made no difference what position they repre-sented in the climate debate. Even editors and authors, who found my criticism of German climate policy wrong, protested. However, this did not lead to any consequences on the part of the UBA or its boss, the Environment Minister.

Josef Joffe, the editor of the magazine ZEIT, wrote: “There is no Ministry for Truth in this country like in George Orwell’s book, but the UBA has taken a step in this direction.” It was a “scandal”, wrote the then chief editor of the WELT Group, Jan-Eric Peters that a government agency publishes a black list of unsolicited journalists in a “tax-financed brochure”. The cli-mate researcher Professor Hans von Storch called the UBA brochure “nonsense.”

Martin Schneider, Chairman of the Science Press Conference (WPK), said: “It is not the task of a state institution to determine which opinions may be expressed and which not. Journal-ists may and must have different positions, and they may and must question established sci-entists again and again. ”

In the German parliament, the Bundestag, a number of MPs criticised the Ministry of the Environment for their agency’s insulting brochure. To question findings is a core task of sci-ence, said Arnold Vaatz, vice president of the Christian Democratic fraction, and named the UBA brochure “the summit of impudence”.

These and many other protests were not able to induce the UBA to change its stance. It con-tinues to distribute the brochure and can do so now with the blessing of the High Court.

Why is “climate change sceptic” an insult?

A climate change sceptic questions whether climate change is taking place. This is an absurd position since the climate has changed again and again since time immemorial. Numerous measurements have shown that the climate is changing at present. There are some “climate change sceptics”, a small group of sectarians, who are not taken seriously by anyone, similar to religious fanatics who reject evolutionary theory. None of the scientists I quoted as a journalist belongs to this category.

However, the word “climate change sceptic” is used a lot by politicians and lobbyists for the energy transition. They try to paint anyone who questions German climate policy or the pre-dictions by the IPCC and PIK as a crank.

What is the state of knowledge of climate science?

The following is the consensus among the overwhelming majority of scientists dealing with climate issues (including those I quoted or wrote about):

• There is a greenhouse effect.
• The proportion of carbon dioxide in the atmosphere has risen sharply.
• The average temperature of the earth’s atmosphere has risen by about one degree Celsius over the past 100 years.
• The emission of carbon dioxide (and other greenhouse gases) by humans (industry, power plants, forestry, car and air traffic, farm animals, etc.) is very likely to contribute to warming.

Denying these facts goes beyond scientific knowledge and conducts a post-factual dis-course.

Yet I have never denied this. There is no text of mine in which any of these issues are denied. My books and articles deal with the following questions:

• How reliable are computer projections that predict future catastrophic warming?
• Is man-made carbon dioxide the only effective force in climate change, or are there other ones?
• Is warming only bad, or does it have also good sides? In view of the fact that in the past, warm times were far better for people, animals and plants than cold times.
• Is the German energy transition the only proper answer to the issue of climate change?

As a journalist, I gave a platform to scientists who do not share the positions of IPCC, PIK and the Federal Government on these questions. It is important to note that I have never pretended to be a scientist myself.

This is definitely not a departure from the measurable facts and the state of scientific knowledge. It is a departure from the conclusions drawn from scientific knowledge and the policies adopted in response.

Why did I sue the UBA?

When the UBA describes the work of a journalist as “contrary to the state of scientific knowledge” and categorises him as a “climate change sceptics”, the denounced journalist is getting an “official stamp” of dishonesty. To report contrary to the facts means to tell a lie. I would not have sued if a private person had called me a liar. This can happen in the heat of a debate. But if a federal agency presents me as a liar in an official brochure (which is read by thousands), I cannot let that stand. Unfortunately the High Court Magdeburg sees this differently.

Since the UBA has now won in court, publicity is even more important. I ask all the editors to address the issue and to send this press release to as many other journalists and parliamen-tarians as possible.

For inquiries:

Michael Miersch
Managing Director for Education and Communication at the German Wildlife Foundation
Office: 030 209 12 84 -11
Mobile: 0175 2419007
E-Mail: michael@miersch.media
Website: www.miersch.media

Anyone wishing to have a more detailed legal assessment can turn to my lawyer:

Dr. Katy Ritzmann
GSK Stockmann + colleagues
Office: 030 203907-0
E-mail: katy.ritzmann@gsk.de
If you are interested, I will send you the decision by the OVG Magdeburg and the judgment of the Administrative Court of Halle from 18 November 2015.

Links to three articles on the UBA brochure and the sentence of the first instance:

DIE ZEIT
http://www.zeit.de/2013/23/klimastreit-erderwaermung-umweltbundesamt 

SÜDDEUTSCHE ZEITUNG
http://www.sueddeutsche.de/medien/umweltbundesamt-warnt-vor-journalisten-amtlich-unserioes-1.1683586

DER TAGESSPIEGEL
http://www.tagesspiegel.de/wissen/umweltbundesamt-behoerde-darf-abweichler-anprangern/12607984.html



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