Term and definition of the detective agency
A detective agency is a commercially operated service company specializing in the investigation of facts, the surveillance of persons or objects, the procurement of information, and the securing of evidence. Detective agencies are commissioned by both private individuals and companies, organizations, and public authorities. The services of a detective agency usually include surveillance, research, observation, as well as the documentation of secured findings, often with a view to legal or extrajudicial utilization.
Legal foundations of the detective agency
Commercial licensing requirements
The operation of a detective agency in Germany is subject to commercial regulations. Pursuant to § 34a of the Trade Regulation Act (GewO), the activities of detective agencies are part of the security trade. Starting and conducting business as a detective agency thus requires registration and authorization. For this authorization, reliability, orderly financial circumstances, and proof of professional competence are required.
Reliability and professional competence
Proof of reliability includes police clearance certificates, information from the relevant regulatory authorities, and, if necessary, further evidence. The professional knowledge test pursuant to § 34a GewO tests, among other things, the basics of data protection, legal frameworks, and job-relevant knowledge.
Data protection requirements
The activities of detective agencies are largely determined by the Federal Data Protection Act (BDSG) and the General Data Protection Regulation (GDPR). The collection, processing, and use of personal data is generally prohibited unless there is a legal permission (§ 26 BDSG) or the consent of the affected person. Also relevant for detective agencies is the so-called “legitimate interest” (Art. 6(1)(f) GDPR), for example in investigations aimed at uncovering and preventing criminal acts.
Detective agencies must implement technical and organizational measures to safeguard the security of personal data. In addition, there is an obligation to document and inform those affected, as long as this does not jeopardize the purpose of the investigation.
Criminal and civil law framework conditions
Limits of investigative activities
The investigative activities of detective agencies are restricted by both criminal and civil law. Activities such as unauthorized eavesdropping (§ 201 StGB), violation of the confidentiality of spoken words, or infringement of privacy (§ 823 BGB in conjunction with Art. 2(1) Basic Law and Art. 1(1) Basic Law) may constitute criminal offenses. Detective agencies may not use any illegal means, in particular no unlawful surveillance measures, entry into residences, or interception of communications.
Testimonial and testimonial authority
Detectives may serve as witnesses in civil and criminal proceedings as part of their duties. The reports and documentation they produce can be used as evidence or indicatory material in court, but are always subject to the principle of free evaluation of evidence (§ 286 ZPO).
Principle of proportionality and personal rights
A central requirement in conducting investigations is the principle of proportionality. The activities of a detective agency must always be proportionate to the pursued purpose and respect the personal rights of the affected person. The boundaries between permissible procurement of evidence and violations of personal rights must be carefully weighed in each individual case.
Labor law aspects
Detective agencies are often employed to uncover breaches of employment duties (e.g. in cases of suspected continued pay fraud, theft, or competition violations). The use of a detective agency in the employment context is only permissible if there is concrete suspicion of a serious breach of duty and the surveillance represents the least intrusive means to investigate the reason for suspicion. This is also confirmed by the established case law of the Federal Labor Court (BAG).
Organization and functions of a detective agency
Typical fields of activity
Detective agencies cover a wide range of services. The most common services include:
- Observation and surveillance of persons and objects
- Investigations in cases of suspected theft, fraud, embezzlement, or other criminal offenses
- Collection of evidence for legal proceedings
- Securing and documenting evidence
- Investigations in labor and competition law
- Business investigations and counter-surveillance
- Address and person searches
Areas of application and clients
Clients of detective agencies include, in addition to private individuals, especially companies, legal departments of larger corporations, banks, insurance companies, and occasionally authorities. The areas of activity range from resolving marital or partnership disputes to investigating time fraud at work and complex cases of white-collar crime.
Liability and duty of care of a detective agency
Detective agencies are subject to special duties of care in the performance of their activities. If their activities cause unlawful harm to third parties or violate personal rights, detective agencies can be held liable for damages according to § 823 BGB. Furthermore, unlawfully obtained evidence may be inadmissible in court.
Liability particularly extends to:
- Damages caused by impermissible surveillance
- Data protection violations
- Exceeding authority in dealings with third parties
Furthermore, detective agencies are obliged to comprehensively inform their clients about the admissibility and legal possibilities of investigative measures.
International activities and legal peculiarities
Many detective agencies offer cross-border services. In such cases, the national legal requirements of the respective country must be observed. In most European countries, commercial licensing is also required, but the legal requirements can differ significantly. International cooperation therefore requires not only legal knowledge but also sensitivity in handling data protection and cross-border investigations.
Conclusion
The activities of detective agencies are shaped by a complex web of legal regulations and restrictions. Commercial requirements, compliance with data protection regulations, protection of personal rights, and observance of labor law and criminal law framework conditions represent the decisive guiding principles for this form of private investigation and surveillance. The legally compliant execution of these activities and proper documentation of investigation results are essential prerequisites for the successful and lawful work of a detective agency.
Frequently asked questions
Is it legal to hire a detective agency in Germany?
Hiring a detective agency is generally legal in Germany as long as the activities of the detectives remain within the bounds of the applicable laws. However, there are clear legal limits, particularly set by the German Criminal Code (StGB), the Federal Data Protection Act (BDSG), as well as general personal rights and the right to informational self-determination. For example, a detective agency may not use illegal methods like eavesdropping on telephone conversations (violation of the confidentiality of spoken words under § 201 StGB) or unauthorized entry into private homes. The collection and processing of personal data are strictly regulated according to the principles of necessity, proportionality, and purpose limitation. There must be a legitimate interest on the part of the client, such as defense against specific legal violations like theft or fraud. Deployments for the sole purpose of exploring private life without a legally relevant reason are not permitted. If statutory requirements are violated, there is a high risk that the acquired findings are inadmissible in court and that both the client and the detective agency may make themselves liable to prosecution.
What legal requirements must detective agencies observe during surveillance?
Detective agencies may only conduct surveillance measures if there is a legitimate interest on the part of the client and the measure is proportionate. In terms of data protection law, the Federal Data Protection Act (BDSG) and the European General Data Protection Regulation (GDPR) must be respected in particular. Surveillance must not be used to randomly or unjustifiably monitor innocent individuals or to observe someone over an excessive period. In particular, no tools may be used that intrude upon the privacy of the person being observed, such as the spying out of homes, making recordings in enclosed spaces, or eavesdropping on conversations. Continuous, round-the-clock surveillance is generally disproportionate. Case law also emphasizes that a balancing of interests must be undertaken: the more sensitive the area being intruded upon, the more serious the grounds for suspicion must be. The outcomes of surveillance may, under certain conditions, be used as evidence in court, provided the measure was conducted in accordance with the law.
Are detectives allowed to use technical aids such as GPS trackers or cameras?
The use of technical aids by detectives is legally highly restricted. GPS trackers may only be used in exceptional circumstances if there is an overriding legitimate interest and no less invasive means are available. In most cases, the secret installation of a GPS tracker on a target person’s vehicle without their consent constitutes a violation of § 201a StGB (violation of the highly personal sphere of life by images) and the right to informational self-determination, making it unlawful. The installation and use of covert cameras are only allowed in exceptional cases, for instance to document serious crimes, and even then only under strict compliance with court-mandated requirements. In general, covert image and sound recordings, especially in private premises or areas with special protection of personal rights (such as changing rooms and toilets), are generally prohibited and may result in criminal consequences.
Are the pieces of evidence obtained by detective agencies admissible in court?
The admissibility of evidence gathered by detective agencies is always dependent on the individual case and subject to the legality of how the evidence was obtained. Courts check whether the detective agency has respected the personal rights and data protection requirements of the persons observed. Evidence obtained by violating general personal rights or through impermissible means – such as illegal surveillance or eavesdropping – is regularly excluded from use as evidence and will not be taken into account in court proceedings. However, if detectives act within the bounds of the law and the surveillance was justified by a legitimate interest, the findings can be used in civil or even criminal proceedings. In employment law in particular, the proportionality of the measure determines the admissibility of such evidence.
What data protection requirements must be observed in detective work?
Detective agencies are subject to strict data protection requirements in accordance with the GDPR and the BDSG. In principle, personal data may only be collected, processed, or used if there is a legal basis – such as the existence of a legitimate interest pursuant to Art. 6(1)(f) GDPR – that is not overridden by the interests, fundamental rights, and freedoms of the data subject. Detective agencies must inform their clients about the nature and purpose of their data processing and investigation activities. Data collection must be limited to what is necessary to achieve the purpose; broad or indiscriminate collection is not permitted. After the investigation is concluded, the data collected must either be deleted or anonymized unless statutory retention obligations exist. Violations of data protection provisions may result in severe fines and potential claims for damages from the data subject.
What special legal provisions apply to investigations in the workplace?
Investigations by detective agencies in the workplace are subject to special employment, data protection, and constitutional requirements. An employer may only engage a detective agency if there is concrete suspicion of a breach of duty or a criminal offense and all less intrusive measures have been exhausted. Monitoring employees in break or changing rooms is generally prohibited, as is the use of covert cameras without significant suspicion. The legally recognized requirement is that an investigation must be ‘necessary and proportionate.’ As a rule, employees must be informed about surveillance measures; covert surveillance is only permitted in exceptional cases, such as when there is a risk of significant breaches of duty or criminal acts. If these requirements are not met, evidence is usually inadmissible and may result in civil and criminal consequences.
Does the target person have to be informed about the activities of the detective agency?
The obligation to inform the affected person over whom a detective agency is investigating generally exists under Art. 14 GDPR, but can be suspended in exceptional cases pursuant to Art. 14(5)(b) GDPR, especially if providing the information would defeat the purpose of the investigation or endanger the rights and freedoms of other persons. In practice, covert investigations during ongoing procedures or in the pursuit of criminal offenses are, as an exception, conducted without immediate notification. However, the information must be provided as soon as the reason for withholding it no longer applies. The detective agency is obligated to document this and eventually inform the data subject about the nature and manner of data processing; otherwise, data protection consequences may arise.
