Morocco takes case against German spyware reporting to BGH

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The Kingdom of Morocco is taking its case to the German Federal Court of Justice (BGH). Practically at the start of Carnival, on November 11, 2025, at 11:30 a.m., a hearing will be held in Karlsruhe on whether foreign states can sue domestic media for an injunction against suspicious statements. The date was announced by the BGH press office on Monday. The occasion is not a joke; it concerns media reports about the Pegasus spyware, its customers, and its victims.

In 2021, Morocco sued both the news portal Zeit Online and the Süddeutsche Zeitung. The lawsuits are intended to ensure that German media no longer report on the suspicion that an authority of the Kingdom of Morocco used the spyware against human rights activists, journalists, and leading European politicians, including Emmanuel Macron, President of France and Co-Regent of Andorra, and Charles Michel, then President of the Council of Europe. The monarchy denies having acquired a Pegasus license at all.

The Pegasus spyware exploits secret security vulnerabilities to remotely penetrate other people's smartphones, then analyzes data and monitors the cell phone owners, including their location and communications. This is financed with tax money from the countries whose services buy Pegasus licenses, including German authorities. Pegasus' manufacturer is the Israeli company NSO Group. It keeps customer lists and victim lists secret but denies having spied on Macron. Meanwhile, Israel is said to have significantly reduced the list of countries to which the spyware can be sold.

Infected cell phones examined in 2 laboratories

A few years ago, a data leak resulted in a list of more than 10,000 telephone numbers that may have been entered by NSO customers for potential surveillance using Pegasus. A research collective comprising NDR, Süddeutscher, WDR, Zeit, and journalists from other countries, coordinated by the Forbidden Stories association and technically supported by the security lab Amnesty Internationals (ai), set to work. The research collective assigned some telephone numbers to lawyers, journalists, human rights activists, and politicians, including Macron and Michel. Macron's phone number was “very likely” entered by “someone in Morocco's security apparatus,” Zeit Online reported in July 2021.

Attacks on the cell phone of then journalist Dominique Simmonot and Paris-based human rights lawyer Joseph Breham were also documented. The ai laboratory was able to physically examine 37 affected smartphones. 23 were successfully infected with the malware; the other 14 showed traces of an attempted attack. The results were confirmed in an independent investigation by the Canadian IT security laboratory Citizen Lab at the University of Toronto.

Zeit and Süddeutsche Zeitung reported on the suspicion that someone in Morocco's state services was behind these attacks. The kingdom considers itself to be wrongly suspected and has sued the publisher of Süddeutsche Zeitung and the operator of Zeit Online for injunctive relief.

Morocco's lawsuits

So far, unsuccessfully. Morocco has lost both cases before the Hamburg Regional Court (LG) and the Hanseatic Higher Regional Court (OLG). The media companies did not even have to prove the truth. This is because foreign states could not assert claims under the law on freedom of expression. From the guiding principle of the Hamburg Higher Regional Court: “Foreign states do not belong to the group of legal entities that are protected by the offense of defamation. As such, they also do not have a general right of personality.”

To date, there have been no Supreme Court decisions on this issue in media law. In a criminal case concerning defamation of the Federal Republic of Germany, the Federal Constitutional Court ruled that “the (German) state is not entitled to any protection of honor protected by fundamental rights.” Individuals and sub-state organizations are indisputably protected, regardless of whether they are nationals or foreigners; however, this should not apply to states as such, unless there are special provisions for this in German law. The Regional Court dismissed the Moroccan claim, and the Higher Regional Court dismissed the appeal against it as unfounded.

Freedom of the media

The Higher Regional Court took up the cudgels for freedom of the press: “Practical considerations also speak in favor of not including foreign states in the scope of protection of defamation offenses, because this would lead to an excessive restriction of freedom of opinion and freedom of the press. Especially when foreign states are in crisis or in conflict with other states, there is, on the one hand, a high public interest in being informed about what is happening; on the other hand, the research possibilities of German journalists, whose activities outside the scope of the Basic Law and the Charter of Fundamental Rights of the European Union are in any case less legally secure than in Germany, are sometimes particularly limited there. As a result, the application of those protective norms where the press could only successfully defend itself against the accusation of their violation by proving the truth (Section 186 StGB) or by proving compliance with the mostly unwritten rules on the protection of legitimate interests (Section 193 StGB) would lead to an imbalance that threatens to significantly restrict the exercise of press freedom.”

But Morocco is not giving up and is appealing to the Federal Court of Justice. The VI. Civil Senate, which is responsible for general personality rights, now has to decide on the question whether a foreign state can be entitled to defense claims against domestic media.

Previous instances:

• VI ZR 415/23(Morocco v. Zeit Online)
  Hamburg Regional Court - Decision of June 3, 2022 - 324 O 355/21
  Hanseatic Higher Regional Court - Decision of November 21, 2023 - 7 U 37/22
• VI ZR 416/23(Morocco against Süddeutsche Zeitung)
  Hamburg Regional Court - Decision of June 3, 2022 - 324 O 350/21
  Hanseatic Higher Regional Court - Decision of November 21, 2023 - 7 U 38/22

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