Abstract

Positive State Obligations to Provide Information

German constitutional doctrine dealing with governmental information overwhelmingly focuses on impacts on constitutional rights from the perspective of their negative dimensions (duty to respect). This article puts positive state obligations at the centre of its inquiry. Analysing decisions by the European Court of Human Rights and the German Federal Constitutional Court, it highlights intersections but also identifies differences in addressing obligations to inform the public and individuals as part of the duty to protect private life, family life and the right to life. As the article shows, state duties to inform the public can also be derived from a variety of other constitutional norms within the framework of established doctrine. Yet, the article by no means uncritically pleads for more governmental information. Rather, it identifies several requirements and limits that can be derived from the principles of democracy and the rule of law. In particular, it warns against the ‘privatization of politics’, namely a shift of responsibility away from democratically accountable government towards the fully informed and responsible citizen. Duties to inform the public cannot fully compensate for the omission of other regulatory instruments to address common concerns but should rather be conceptualized as one part of complex regulatory answers to pressing social and ecological needs.