Definition and legal framework of surveillance
Die Surveillance is understood as the targeted, covert observation of persons, objects, or locations for the purpose of gathering information. Legally, it is a central tool for investigation and control, particularly used in criminal prosecution, danger prevention, private investigation, and in employment disputes. Surveillance is always caught between the interest in clarification and control on the one hand and the protection of personal rights on the other.
Distinction and classification
Open vs. covert surveillance
Surveillance can open or covert be conducted. In open surveillance, the observed person is aware that they are being monitored, whereas in covert operations, the measure goes unnoticed. The legal assessment, especially regarding the required legal basis and proportionality, is largely determined by this distinction.
Simple and special surveillance
In simple surveillance this generally involves covert following or observing for a short period without special technical aids. In contrast, special surveillancerefers to surveillance carried out over a longer period, regularly, with several people involved or using technical means (e.g., GPS tracker, video technology). The latter is subject to much stricter legal regulation.
Surveillance in criminal prosecution
Legal basis
Measures of surveillance are regulated in the German Code of Criminal Procedure (StPO), particularly in § 163f StPO (“Surveillance”). This provision distinguishes between short-term (up to 24 hours) and long-term surveillance, with significantly stricter requirements for the latter, including a judicial order.
Requirements
Surveillance may only be ordered when an investigation has been initiated and there is initial suspicion of a serious crime. It must be suitable, necessary, and proportionate. The measure should be used within the framework of peaceful investigation and clarification of the facts. In particular, the principle of proportionality plays a central role and requires ongoing review of whether the objective of surveillance can also be achieved by less intrusive means.
Involved authorities and execution
Execution may be carried out by police, public prosecutors, and cooperating investigative services. For certain technical means (e.g., telecommunications surveillance), supplementary permissions and further control mechanisms are required by law.
Surveillance by intelligence services
Surveillance is used by intelligence services for danger prevention and to provide the federal government with security-related information. The legal basis is found in intelligence service laws, such as the Federal Office for the Protection of the Constitution Act (BVerfSchG) or the Federal Intelligence Service Act (BND Act). The thresholds for surveillance by intelligence services are also high due to the significant encroachments on the fundamental right to informational self-determination and are regularly monitored by oversight bodies.
Surveillance in police law and for danger prevention
State legal basis
In the area of danger prevention (e.g., to prevent crimes or to avert significant dangers to public or individual safety), the legal bases for surveillance can be found in the police laws of the federal states (§§ 39a, 39b PolG NRW, etc.). The thresholds are lower than in criminal proceedings, yet the principles of proportionality and purpose limitation apply.
Areas of application
Typical applications include monitoring individuals suspected of preparing or committing specific crimes, or locations where such acts are expected to occur.
Surveillance in employment law
Employers and private observation
In employment relationships, employers may order surveillance within their right of direction, for example to check for working time or sick leave abuse. Strict adherence to data protection laws (cf. § 26 BDSG) is required. Covert surveillance is only permissible where there is specific suspicion of a serious breach of duty and milder means have been exhausted.
Case law and data protection
Case law from the Federal Labor Court prohibits unfounded or disproportionate surveillance, especially when technical aids are used. The use of private investigation services is subject to data protection principles and the requirements of the GDPR. Information obtained unlawfully may often not be used as evidence in court.
Surveillance by private individuals and private investigators
Permissibility and limits
Private individuals and contracted investigators may conduct surveillance as long as they act within the legal framework. This particularly includes refraining from infringing personal rights, the prohibition of eavesdropping (§ 201 Criminal Code), the prohibition on violating highly personal areas of life (§ 201a Criminal Code), and the general requirement of proportionality.
Prohibition of the use of evidence
If surveillance is conducted in violation of applicable laws, not only are criminal sanctions for prohibited monitoring measures possible, but also civil claims for injunction, damages or compensation for pain and suffering. Moreover, evidence obtained in such a manner may be subject to rules excluding its use in court proceedings.
Limits and control mechanisms
Constitutional limits
Surveillance always represents an interference with the fundamental right to informational self-determination (Art. 2 para. 1 in conjunction with Art. 1 para. 1 of the Basic Law) and, where applicable, the general right to personality. In individual cases, there may be an imbalance between the interest in investigation and the protection of privacy, which must be considered in the context of proportionality and data retention control. Legally unjustified surveillance is not permissible.
Judicial review
The ordering and execution of surveillance is subject to judicial control and can be reviewed before administrative or criminal courts. The legality can especially be contested where there are doubts about the necessity and proportionality of the measure.
Special forms of surveillance
Technical surveillance
Technical aids such as GPS trackers, surveillance cameras, or telecommunications technology are subject to strict data protection requirements and additional legal permissions (e.g., §§ 100c ff. StPO for telecommunications surveillance). Their use generally requires a judicial order.
Surveillance of minors or particularly vulnerable persons
Observing minors, particularly vulnerable persons, or in sensitive areas (e.g., private homes) is subject to especially strict legality requirements. Such surveillance is often permissible only in cases of very serious suspicion.
Legal consequences of unlawful surveillance
Illegally conducted surveillance can have significant legal consequences, including:
- Criminal liability (e.g., violation of the confidentiality of the spoken word, § 201 Criminal Code)
- Fines and claims for damages arising from breaches of data protection
- Exclusion of evidence in court proceedings
- Administrative law measures and disciplinary proceedings against officeholders
Summary and significance
Surveillance is an instrument relevant to the rule of law for investigating and preventing crimes as well as for legitimate monitoring purposes. Its implementation is subject to strict statutory, constitutional, and data protection requirements. The measure is always in tension between effective investigation and the civil liberties of those affected. Necessary balance is achieved through comprehensive control mechanisms, judicial review, and the primacy of proportionality.
Frequently asked questions
In which cases is surveillance legally permissible?
The legal permissibility of surveillance primarily depends on the principle of proportionality and statutory regulations, which are set out, among others, in criminal procedure law (§§ 163f, 100h StPO), in the police laws of the German states, and in data protection law. Surveillance is especially permitted where there is reasonable suspicion of a crime and less intrusive means are unlikely to succeed. In civil disputes – for example, in cases of suspected working time fraud – surveillance may be permitted under strict conditions for the employer, e.g. where a specific, demonstrable suspicion of a serious breach of duty exists. Surveillance without meeting these requirements violates the general right of personality (Art. 2 para. 1 GG in conjunction with Art. 1 para. 1 GG) and may give rise to claims for injunctions and damages. Where particularly protected spaces (such as a private home) are also monitored, surveillance is typically not permitted and constitutes a serious intrusion into privacy.
What statutory regulations apply to surveillance by private individuals and investigators?
Surveillance by private individuals and investigators in Germany is subject in particular to the provisions of the Civil Code (BGB), the Federal Data Protection Act (BDSG), the Criminal Code (StGB), and state regulations. Private detectives may only act if there is a legitimate interest – e.g., for securing evidence in civil proceedings – and a demonstrable suspicion of unlawful conduct. Surveillance exceeding what is necessary, or carried out without the knowledge of the observed person, is only permitted under narrow legal conditions and may otherwise constitute a criminal offense under § 201 StGB (violation of the confidentiality of the spoken word) or § 238 StGB (stalking). Moreover, data protection law requires the immediate deletion of collected data where no legitimate purpose exists or the purpose has been fulfilled.
What rights does the person under surveillance have?
The person under surveillance can invoke the general right of personality and the right to informational self-determination. As a rule, they are entitled not to be surveilled without cause and, if they become aware of unlawful surveillance, can sue for injunctive relief (possibly by interim injunction), damages, and in some cases compensation for pain and suffering (§ 823 para. 1 BGB in conjunction with Art. 2 para. 1, Art. 1 GG). In addition, there is a right to information under Art. 15 GDPR against the person ordering the surveillance and the executing detective agency. If unlawful surveillance is established, the person is entitled to lodge a complaint or file a report with data protection and law enforcement authorities.
What special features apply to surveillance in employment relationships?
The rights of employees are particularly protected in employment relationships. According to § 26 BDSG, surveillance of an employee is only permissible where there is suspicion of a serious breach of duty or criminal offense and no milder means of clarification are available. In addition, employers must observe the principles of necessity and proportionality. Continuous monitoring or covert video surveillance is legally permissible only in exceptional cases and, if unlawful, can lead to exclusion of evidence in employment law proceedings. Unlawful surveillance can also result in substantial fines.
How is surveillance by law enforcement authorities regulated?
Law enforcement authorities may conduct surveillance pursuant to §§ 163f, 100h StPO under certain conditions. As a rule, there must be initial suspicion of a serious crime, and the measure must be necessary for investigation or prosecution and proportionate. According to § 163f para. 1 StPO, long-term surveillance (more than 24 hours or on more than two days) generally requires a judicial order. Surveillance by technical means, such as GPS tracking or covert cameras, is only permitted where explicitly authorized by law and with all protective provisions observed. Disregard for legal requirements may result in exclusion of evidence and claims for damages.
How does unlawful surveillance affect court proceedings?
Evidence obtained through unlawful surveillance is generally subject to exclusion as evidence, since it was acquired in breach of fundamental rights and data protection provisions. Especially in criminal proceedings, the court will check whether the use of individual observation results is compatible with the fundamental rights of those concerned. In civil proceedings (e.g., employment law), a balance is struck between the interest in evidence and the personality rights of the affected individual. Personality rights often prevail, especially in the case of severe and secret surveillance, resulting in the inadmissibility of such evidence.
What sanctions can result from unlawful surveillance?
Anyone who conducts unlawful surveillance risks criminal, civil, and data protection law consequences. Under criminal law, offenses may include violation of the confidentiality of the spoken word (§ 201 Criminal Code), unauthorized recordings (§ 201a Criminal Code), and stalking (§ 238 Criminal Code), all of which may result in imprisonment or fines. Under civil law, those affected may file claims for damages and injunctive relief, especially for violation of personality rights. Under data protection law, supervisory authorities may impose fines pursuant to Art. 83 GDPR if data protection rules are breached. In addition, affected persons have the right to file a complaint about data protection breaches with the competent supervisory authority.
