Definition and Legal Classification of Private Secrets
Private secrets, in German law, refer to personal information and facts worthy of protection that have been entrusted to or otherwise become known to a person, and where there is a legitimate interest in their non-disclosure. The legal protection of private secrets is particularly enshrined in the German Criminal Code (StGB), in the professional regulations of certain professions, as well as in civil law. The term is of central importance in the context of data protection, medical confidentiality, lawyer’s duty of confidentiality, and other trust relationships.
Legal Basis
Criminal Law Protection: Section 203 StGB
The core of the criminal law provision is found in Section 203 StGB, which imposes penalties for the disclosure of private secrets. Protected are both secrets entrusted to or known by professional secret holders (e.g., doctors, lawyers, notaries, psychotherapists), and those learned by other persons who are obligated to confidentiality (e.g., public officials). The provision covers the disclosure of a secret to third parties without the consent of the affected person.
Elements of the Offence
- Secret: This includes facts that are not obvious and for which there is a legitimate private interest in maintaining confidentiality.
- Entrusted or otherwise become known: The secret must have been explicitly communicated within the context of a confidential relationship or have become known through contact with the affected person.
- Disclosure: Any form of communication to third parties, whether oral, written, or digital, fulfills this condition.
- Without Authorization: Authorization exists if there is consent or a legal obligation to disclose.
Violations of Section 203 StGB are punishable by imprisonment of up to one year or a fine.
Professional Confidentiality Obligations
Medical Confidentiality
According to Section 9 of the Model Professional Code for Doctors and Section 203 StGB, doctors are obligated to maintain the confidentiality of all circumstances entrusted to them or made known to them in the exercise of their profession. This protection extends to all information relating to individuals, regardless of whether it is medical, financial, or personal.
Lawyer’s Duty of Confidentiality
Service providers such as lawyers are also subject to comprehensive professional confidentiality obligations. These extend to all content that becomes known in the course of the client relationship. Violations subject the offender not only to criminal but also to professional disciplinary sanctions.
Other Professions
Other protected professions include, in particular, notaries, psychotherapists, pharmacists, and social workers, provided that private secrets are entrusted to them in the course of their professional activities.
Civil Law Protection of Secrets
In civil law, there are also contractual and tort-based confidentiality obligations. Through contractual agreements such as confidentiality clauses, parties can protect secrets even without statutory obligations. In addition, Section 823 (1) BGB may provide a claim for damages for violation of personality rights through the disclosure of a secret.
Data Protection and Private Secrets
The General Data Protection Regulation (GDPR) protects personal data and thus also concerns private secrets, insofar as the information kept secret is personal data. The areas covered by the GDPR overlap with confidentiality obligations, particularly in the health, legal, and social professions.
Limits of Confidentiality Protection
Justifying Disclosure
Cases excluded from secrecy protection are those in which there is a legal obligation to disclose (e.g., reporting of certain infectious diseases), a justifying emergency (Section 34 StGB), or the explicit consent of the affected person. Protecting overriding community interests can also, in individual cases, establish a duty to disclose.
Criminal Complaints and Procedural Context
In criminal and civil proceedings, courts may permit professional secret holders to disclose certain private secrets (e.g., breaking testimonial refusal rights as per Sections 53, 53a of the Code of Criminal Procedure), if overriding legal interests require it.
Limitation Period and Expiry
Over time, the interest in disclosure may decrease, for example, if it becomes clear that the affected person no longer claims confidentiality protection or if there are no longer any legitimate interests to protect (e.g., upon the death of the affected person under certain circumstances, see Section 203 (4) StGB).
Background in Personality Rights and Distinctions
Private secrets form an important part of the general right of personality, which is protected by the Basic Law (Art. 2 (1) in conjunction with Art. 1 (1) GG). They are to be distinguished from the concept of trade secrets, which primarily concern economic interests and are governed by the Act on the Protection of Trade Secrets (GeschGehG). Private secrets expressly concern privacy, social reputation, health, and the integrity of the right to informational self-determination.
Sanctions and Legal Consequences of Violations of Private Secrets
Criminal Sanctions
The violation of private secrets leads to criminal consequences under Section 203 StGB. In certain cases, additional criminal provisions may also apply, such as defamation (Section 187 StGB) or slander (Section 186 StGB), if discrediting facts are disseminated through the disclosure.
Civil Law Claims
Affected individuals may claim for injunctive relief, retraction, and damages, especially if the disclosure constitutes an unlawful infringement of the general right of personality (Sections 823, 1004 BGB by analogy).
Professional and Disciplinary Measures
In addition to criminal and civil sanctions, professional measures such as disciplinary actions up to the revocation of the license to practice the profession may be imposed.
The Importance of Private Secrets in the Digital Society
With advancing digitalization and increasing connectivity, the importance of protecting private secrets is growing. Digital communication tools, cloud computing, and electronic patient records present new challenges to confidentiality protection. Professional and data protection obligations also apply to the secure electronic transmission, storage, and processing of secrets.
Technical and Organizational Measures
In sensitive areas, technical and organizational measures for confidentiality protection are essential. These include encryption, access restrictions, logging, and regular employee training in handling confidential data.
Summary
Private secrets are an essential component of data protection and the protected trust relationship in numerous areas of German law. They are subject to comprehensive criminal, professional, and civil law protection. Especially in the context of digitalization and changing forms of communication, the proper handling of private secrets is gaining practical and legal significance. Respect for the confidentiality of private information is a central principle for the functioning of modern societies and their institutions.
Frequently Asked Questions
Who is obligated under German law to protect private secrets?
Under German law, persons who come into contact with information worthy of protection in the course of their professional activities are particularly obligated to protect private secrets. This includes, for example, doctors, pharmacists, lawyers, notaries, psychotherapists, tax advisers, and members of similar professions (Section 203 German Criminal Code – StGB). The duty of confidentiality applies both to the actual professional practitioners and to support staff who, within the scope of their work, have access to secrets, such as medical assistants or law firm employees. In certain cases, other professionals, such as bank employees or insurance staff, are also obligated to maintain confidentiality by special laws. For all these persons, the disclosure of private secrets is generally criminally punishable unless there is effective consent from the affected person or a legal obligation to disclose.
What information is considered a private secret under the law?
Private secrets, in the legal sense, include all facts that can be attributed to a specific person and for which the affected person has a legitimate interest in keeping confidential. Typical examples are health data, diagnoses, therapy content, financial circumstances, family or personal matters, as well as legal assessments or confidential communication. It does not matter whether the information was transmitted in writing, orally, or otherwise. Decisive is only that it is not a generally known fact and that its disclosure could burden or harm the affected person. Information that is publicly accessible or has no personal reference is therefore not protected.
When may a private secret be lawfully disclosed?
Disclosure of private secrets is only permitted under narrow legal conditions. The most important exception is the explicit and informed consent of the affected person. In addition, there are statutory disclosure obligations or authorizations, for example under the Infection Protection Act (IfSG), in the case of notifiable diseases, or in court testimony where confidentiality has been waived. The presence of a justifying emergency (Section 34 StGB) may also allow disclosure, for example, if maintaining confidentiality would pose a significant danger to the life or limb of others. Outside of these legally regulated exception cases, the transmission of private secrets remains punishable.
What are the criminal consequences for violating private secrets?
Anyone who unlawfully discloses a private secret in violation of the legal provisions is liable to prosecution under Section 203 StGB. The penalty can, in principle, be imprisonment of up to one year or a fine. In particularly serious cases or in cases of commercial disclosure, the penalty may be higher. In addition to criminal sanctions, professional and disciplinary measures can also follow, such as prohibition from the profession, revocation of authorization, or disciplinary proceedings. Furthermore, the injured party can assert civil claims for damages and injunctive relief.
What is the significance of private secrets in connection with electronic data processing?
In the digital age, the electronic storage, processing, and transmission of personal data are subject to strict data protection requirements under the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG). Professional secret holders must ensure that IT systems and databases are protected by appropriate technical and organizational measures to prevent unauthorized access or loss of secrets. The transmission of sensitive data requires special justification and documentation. Violations of data protection regulations can lead to additional fines by supervisory authorities in addition to breaches of private secrets.
Does the duty of confidentiality continue after termination of the employment relationship?
The obligation to protect private secrets continues even after leaving the profession or after termination of the service relationship. Former employees, interns, or trainees are still required to keep all acquired secrets confidential and not to disclose them. This serves the long-term protection of the affected person’s personal rights and prevents sensitive information from being misused even years later. A breach after termination of the employment relationship is also subject to criminal prosecution.
What are the differences between private secrets, professional secrets, and trade secrets?
Private secrets relate to the personal and highly personal matters of an individual, which require special protection. Professional secrets refer to information obtained through the exercise of certain professions, for which confidentiality is legally required (particularly under Section 203 StGB). Trade secrets, on the other hand, concern company-specific or competition-relevant information necessary to retain a business advantage and are protected by the Act on the Protection of Trade Secrets (GeschGehG). While private and professional secrets often overlap, especially in health or legal professions, the focus of a trade secret is on protecting business information. The legal foundations and possible sanctions differ accordingly.
