Term and Meaning of Prohibited Image Recording
Die prohibited image recording refers to the unauthorized creation or transmission of images of a person in certain particularly protected situations or premises. The term is especially relevant in data protection law and criminal law, and in Germany it is specifically established by Section 201a of the Criminal Code (StGB). The protection is aimed primarily at preventing intrusions into the intimate sphere and the personal rights of affected persons.
Legal Foundations
Criminal Code (StGB) – Section 201a Prohibited Image Recordings
According to Section 201a StGB, the creation or transmission of image recordings of another person taken in a residence or a place especially protected from view without their consent is punishable by law. The provision protects individuals from secret surveillance and unauthorized documentation in situations where they enjoy special privacy protection.
Elements of the Offense
- Creation/Transmission: Taking or live transmission of the recording is sufficient.
- Image of the person: A person must be clearly depicted.
- Residence or especially protected space: This includes bathrooms, changing rooms, sanitary facilities, bedrooms, and comparable private spaces.
- Without consent: The consent of the person depicted is absolutely required.
- Unauthorized image recording: The recording must be made unlawfully.
Legal Consequences
Prohibited image recording is punishable by imprisonment of up to two years or a fine. Attempting the offense is also punishable. In addition, unlawfully obtained recordings may be confiscated and destroyed.
Distinction from Other Offenses
Violation of the Most Personal Sphere of Life (Section 201 StGB)
The protection of conversations from unauthorized recording is regulated independently and does not fall directly under Section 201a StGB, but under Section 201 StGB (“Violation of the Confidentiality of the Spoken Word”).
Violation of the Right to One’s Own Image (Sections 22 ff. KunstUrhG)
Under the provisions of the Art Copyright Act, images may only be distributed or publicly displayed with the permission of the depicted person. Simply taking a picture, without further distribution, generally does not constitute a violation of the KunstUrhG, but may be covered by Section 201a StGB if protected private situations are involved.
Civil Law Aspects
Claims for Injunction and Damages
Apart from the criminal relevance, unauthorized image recording may also give rise to civil claims. Affected persons in particular have the following options:
- Injunction: Unauthorized image recordings can be challenged by an injunction lawsuit.
- Damages: For non-material damage, such as violations of personal rights, there may be a claim to appropriate compensation (Section 823 BGB in conjunction with Article 1 para. 1, Article 2 para. 1 GG).
Right to Deletion
Affected individuals are entitled to the deletion or destruction of unauthorized image recordings to ensure the restoration of their personal rights.
Data Protection Assessment
GDPR and BDSG
The creation and processing of image recordings is considered the collection and processing of personal data pursuant to Article 4 GDPR. Accordingly, a valid legal basis is required for any recording, storage, and transmission. In principle, the consent of the person concerned is a mandatory requirement, subject to a few exceptions.
Video Surveillance
For video surveillance in public or private spaces, Section 4 BDSG and Article 6 GDPR apply additionally. Here too, secret recordings are regularly impermissible, especially when they take place in particularly sensitive areas.
Exceptions and Justifications
Consent of the Data Subject
The most significant exception to criminal liability is the express consent of the person concerned, provided it is valid at the time the recording is made.
Justifying Interests
In rare cases, overriding legitimate interests, such as averting acute danger or criminal prosecution, may justify an image recording. However, a proportionality assessment must always be carried out, and the recording must be necessary and appropriate for the purpose of danger prevention or securing evidence.
Practically Relevant Examples
- Secret recordings in changing rooms, toilets, or bedrooms: These regularly constitute criminal cases of prohibited image recording.
- Use of smartphones to record without the knowledge of the person concerned: The taking of so-called “upskirting” or “downblousing” images is clearly covered.
- Dashcams and bodycams: Here, special attention should be given to the purpose of the recording, the specific use, and the consent of the recorded persons.
International Perspective
Many countries have similar rules to protect privacy. However, the legal protection mechanisms vary regarding scope, penalties, and the definition of protected areas. International data protection agreements and the European Convention on Human Rights (ECHR) provide overarching principles for the protection of private life, on the basis of which national laws on prohibited image recording have also been enacted.
Conclusion
Prohibited image recording constitutes a central legal protection mechanism for the private and intimate sphere. Through statutory provisions, particularly Section 201a StGB, secret image recordings in particularly protected spaces are subject to criminal penalties. In addition, persons concerned have civil and data protection law claims. Both private and commercial parties should always be aware of the criminal and civil risks of conscious image recording in sensitive areas, and in cases of doubt or borderline situations, seek legal clarification.
Frequently Asked Questions
What penalties apply for prohibited image recording?
The creation or distribution of prohibited image recordings constitutes a criminal offense under Section 201a of the Criminal Code (StGB). Anyone who, without authorization, creates or transmits images of another person who is in a residence or a place especially protected from view may be punished by imprisonment of up to two years or a fine. The same applies if a recording of a naked person is made or disseminated to third parties, regardless of where the recording takes place. The punishment is more severe if the act is committed in public or distributed to a large number of persons. In addition to criminal sanctions, civil law consequences such as claims for damages, injunctions by the affected person, possible claims for compensation for pain and suffering, and the destruction of the image material may be imposed.
In which situations is taking image recordings generally prohibited?
Image recordings are prohibited in particular in situations where a person has a legitimate claim to confidentiality and privacy. This especially includes private spaces such as homes, hotel rooms, changing rooms, medical examination rooms, and all areas provided with special protection from view. Even in public spaces, a recording may be prohibited if it is made secretly and individual persons are captured in intimate or embarrassing situations. What is decisive is always the lack of valid consent by the person depicted and the legitimate interest in keeping the situation confidential.
What applies to the publication of prohibited image recordings?
The publication, distribution, or making accessible of prohibited image recordings is also a criminal offense and is covered by Section 201a StGB or, in borderline cases, by Section 22 Art Copyright Act (KUG), which requires the agreement of the depicted person for publication. Even if the recording was initially made lawfully, sharing or publishing it without the consent of the depicted person is prohibited if it concerns their private or intimate sphere. The platforms on which publication takes place are also obliged to delete such content as soon as they become aware of its presence.
How can affected persons take action against prohibited image recordings?
Those affected by prohibited image recording can take both criminal and civil action against the person responsible for the recording. In criminal law, it is advisable to file a complaint with the police or public prosecutor’s office, which initiates an investigation. At the same time, there are civil law claims for injunction, removal (deletion of the recording), information, and, if applicable, damages and compensation for pain and suffering. Furthermore, it is possible to apply for urgent court proceedings (e.g., preliminary injunctions) to quickly secure rights.
Are there exceptions in which image recordings are permitted despite lacking consent?
Exceptions exist only in narrowly defined cases of public interest, such as to safeguard overriding legitimate interests of the general public (e.g., freedom of the press for documentary recordings of public events) or as evidence in the context of specific situations of self-defense, necessity, or lawful investigations by authorities. However, these exceptions are to be interpreted narrowly and are always subject to proportionality checks, as well as further statutory provisions, particularly for the protection of personal rights and human dignity.
What role does the consent of the depicted person play?
Consent is a central legal criterion. Any image recording made in a protected spatial or private context, or which shows a person in a situation worthy of protection, requires the express, voluntary, and informed consent of the person concerned. This consent can be revoked at any time. If there is no consent, the recording and its further processing are frequently unlawful and can lead to criminal and civil consequences.
Is possession of prohibited image recordings also a criminal offense?
Mere possession may also be a criminal offense under certain circumstances, especially if the images are from the intimate or highly personal sphere and were taken without consent. This applies both to perpetrators and to individuals who knowingly possess, have unlawfully stored, or have distributed such recordings. Confiscation and destruction of the material may be ordered, regardless of criminal sanctions.
