Recent ruling in the case of a funded psychologist sets important standards for the protection of confidentially collected research data

The Deutsche Forschungsgemeinschaft (DFG, German Research Foundation) has welcomed a recent ruling by the Federal Constitutional Court (Bundesverfassungsgericht). As the largest research funding organisation and central self-governing organisation for science and the humanities in Germany, the DFG believes this ruling underlines the crucial importance of freedom of research.

The ruling by the Federal Constitutional Court of 25 September 2023 (1 BvR 2219/20) specifically concerns the protection of confidentially collected research data. It was issued as a result of a constitutional appeal lodged by a psychology professor against the seizure by the Munich public prosecutor’s office of tape recordings and interview transcripts compiled as part of a DFG-funded project concerned with conducting research into Islamist radicalisation in prisons. The prisoners were assured of confidentiality during their interviews, as is customary and essential in connection with such research projects.

In its ruling, the First Chamber of the First Senate of the Federal Constitutional Court has now expressed significant reservations regarding the constitutional nature of the seizure. It is particularly remarkable from the DFG’s point of view, as has also been expressed in previous legal and public commentaries, that the constitutional appeal itself was declared inadmissible for formal reasons. Making substantive statements nonetheless, the Federal Constitutional Court states in its introduction that while research data is not subject to a fundamental ban on seizure, the nature and severity of the encroachment on the constitutionally protected freedom of research had been misjudged in the course of the required weighing up of interests in this specific case.

The court first clarified that confidential data collection is a protected scientific method and therefore falls within the scope of freedom of research. The further comments made by the court are groundbreaking here in the view of the DFG in that the consequences of the seizure are said not to be limited to the individual project but could potentially also make future research projects more difficult or even impossible, since information of this kind can hardly be obtained without effective confidentiality agreements. The more a research project relies on such confidentiality agreements, the court states, the more the freedom of research must be taken into account when weighing up the interests involved.

The ruling issued by the Federal Constitutional Court reads as follows: “The effective and efficient administration of criminal justice is a constitutional objective. With regard to the weighting of this purpose, however, it must be taken into account in the present case that the research concerned is likewise of particular importance from the point of view of the rule of law. Rational crime prevention is highly dependent on knowledge of unreported areas and the underlying dynamics that give rise to crime. Effective prevention of criminal offences therefore presupposes precisely the kind of research that is made considerably more difficult or impossible by accessing its data for the purpose of criminal prosecution in a specific case”.

“From the DFG’s point of view, this ruling by the Federal Constitutional Court sets important and groundbreaking standards. The scientific community has long complained that the requirements for the seizure of research data are insufficiently regulated by law. The DFG also pointed this out in its statement submitted to the Federal Constitutional Court in connection with the appeal. As a result of this ruling, legal cornerstones have now been established which will have to be observed by the prosecution authorities in future cases,” commented the President of the DFG, Professor Dr. Katja Becker, adding: “The case also shows that there is still a need for legal regulation, however. In the DFG’s view, the Federal Constitutional Court’s ruling provides significant indications of this.”

Further information

Media contact:

• Marco Finetti
  Head of Press and Public Relations at the DFG
  Tel. +49 228 885-2109
  presse@dfg.de

Programme contacts at the DFG Head Office:

• Dr. Anna Knaps
  Social and Behavioural Sciences
  Tel. +49 228 885-3031
  anna.knaps@dfg.de
• Daniel Weth
  Legal Affairs Office
  Tel. +49 228 885-2995
  daniel.weth@dfg.de

The ruling – BverfG, ruling of the First Chamber of the First Senate of 25 September 2023, – 1 BvR 2219/20 – marginal note (1 – 17) – is to be found in full at

• http://www.bverfg.de/e/rk20230925_1bvr221920.html