Definition and legal classification of unlawful audio recording
An unlawful audio recording refers under German law to an audio recording (sound recording) of conversations or noises that has been made contrary to applicable statutory provisions and without the required consent of the persons affected. Such recordings generally infringe upon the general right of personality and may entail civil and criminal consequences. The admissibility or inadmissibility of an audio recording is governed by various legal provisions, particularly from the German Civil Code (BGB), the Criminal Code (StGB), as well as data protection regulations.
Legal basis for unlawful audio recordings
§ 201 StGB (Violation of the confidentiality of the spoken word)
§ 201 StGB is of particular significance. It makes it a criminal offense to record another person’s non-publicly spoken word onto a sound carrier, or to disclose or make such a recording publicly accessible. The law focuses on protecting the confidentiality of private communication.
- Non-public is a conversation if the participants do not wish or do not expect uninvolved third parties to overhear the conversation.
- An unlawful audio recording is already present if such a conversation is recorded without the consent of at least one participant.
- This provision applies regardless of whether the recording is made with technical equipment (e.g., smartphone, dictation device, eavesdropping device) or other technology.
Requirements for criminal liability
- Recording a non-publicly spoken word
- No consent from the affected person(s)
- Knowledge or intention to record by the recording person, i.e., intent
Penalties
Penalties range from a fine to imprisonment of up to three years.
Civil law aspects (§§ 823, 1004 BGB)
In addition to criminal prohibition, unlawful audio recordings regularly also give rise to civil claims based on the general right of personality:
- Injunctive relief (§ 1004 BGB by analogy) against the person who unlawfully makes or disseminates an audio recording.
- Claim for damages (§ 823(1) BGB) in the case of demonstrable material or non-material damage resulting from the recording or its dissemination.
Data protection law classification
Making audio recordings constitutes the processing of personal data under the General Data Protection Regulation (GDPR), provided that natural persons are identifiable in the recording.
- For data protection purposes, prior consent is required in most cases.
- In certain cases, processing may be based on legitimate interests (Art. 6(1)(f) GDPR), but this is to be interpreted restrictively.
Special cases and exceptions
Audio recordings in public
Conversations held in public are not subject to the same strict protections as non-public discussions. Here, the requirements for inadmissibility only apply to a limited extent; nevertheless, personality rights and the legitimate interests of those affected must be observed.
Audio recordings in the employment relationship
The secret recording of work-related conversations or discussions with supervisors, colleagues, or customers is generally inadmissible and may have employment law consequences, including immediate dismissal.
Law enforcement authorities
Special statutory provisions apply to law enforcement authorities (§§ 100f et seq. StPO). A covert audio recording by police or public prosecutors is subject to strict legal requirements and is generally only permissible in cases of serious crime.
Consequences of an unlawful audio recording
Criminal law consequences
- Investigation proceedings by the public prosecutor’s office
- Fine or imprisonment
- Collateral penalties such as confiscation of the recording
Civil law consequences
- Injunctive relief involving the threat of a regulatory fine or detention in the event of repeated infringement
- Monetary compensation for significant violations of personal rights
- Right to deletion or destruction of the recording
Employment law consequences
- Termination of employment for good cause
- Employer’s claim for damages
Data protection sanctions
- Regulatory fines and penalties under Art. 83 GDPR for violations of data protection requirements
Use of unlawfully made audio recordings in civil and criminal proceedings
Audio recordings made without consent are often subject to an evidentiary exclusion, meaning that they may not regularly be used as evidence in court proceedings:
- According to the case law of the Federal Court of Justice (BGH), the use of unlawful audio recordings in civil proceedings is generally excluded.
- In criminal proceedings, there may be a case-by-case weighing of the interest in clarification and the rights of the person concerned, whereby the protection of personal rights generally prevails.
Technical means and distinction from permissible measures
Permissible audio recordings
A recording is generally permissible if all persons affected by the recording expressly or implicitly consent to the making of the recording. Even then, data protection requirements must be observed.
Distinction from video recordings
In the case of video recordings with audio, both the right to one’s own image and the right to one’s spoken word must always be examined. Both forms of recording may be inadmissible if made without consent.
Conclusion
An unlawful audio recording always exists when a person’s non-publicly spoken word is recorded without their consent or statutory authorization. In Germany, it is prohibited in almost all cases, protects the right of personality, and can have significant criminal, civil, data protection, and employment law consequences. The statutory provisions are designed to protect the confidentiality of private communication and the personal rights of individuals. In cases of doubt, it is always advisable to obtain the consent of all persons involved before making a recording.
Frequently Asked Questions
Is secretly recording conversations a criminal offense in Germany?
Yes, secretly recording conversations is generally a criminal offense in Germany and falls under § 201 StGB (Criminal Code): Violation of the confidentiality of the spoken word. This means it is prohibited to record another person’s non-publicly spoken word with an audio recording device or to use or make such a recording available to third parties without their express consent. This applies even if you are yourself a participant in the conversation. The law protects the right to non-publicly spoken words and thus the general personality rights of the conversation participants. Violations are punished with a fine or up to three years’ imprisonment. Only limited exceptions apply, for example, to avert a concrete danger to a person’s life, physical integrity, or personal freedom, where justification may be present.
What legal consequences can result from unlawful audio recordings?
Those who make unlawful audio recordings must expect criminal consequences. In addition to a fine or imprisonment, the recorded material can be seized and destroyed by the investigating authorities. In addition, the injured party can assert civil claims such as an injunction, deletion of the recordings, and damages. In employment relationships, making secret audio recordings can also have employment law consequences and constitute a valid reason for summary dismissal. This is considered particularly serious if the relationship of trust between the parties—for example, between employer and employee—is severely impaired.
Are there situations in which an unlawful audio recording may still be used?
As a rule, unlawful audio recordings may not be used. The exclusion of evidence results from the protection of the personal rights of those affected. Only in very limited exceptional cases may such a recording be taken into account as evidence, for example, to defend against serious crimes or in the exercise of a legitimate right of self-defense or emergency aid. Courts here weigh the interests between evidentiary value and personal rights. In labor court or civil proceedings, however, such recordings are usually inadmissible.
Do those affected always have to be actively informed of an audio recording?
Yes, German law requires the active consent of all participants before an audio recording is made. It is not sufficient merely to provide a general notice or, for example, to have a dictation device visible in the room. Every participant must expressly agree to the recording. This requirement for prior and informed consent protects the confidentiality of speech and does not permit tacit acceptance.
How do the regulations differ for recordings in private and business contexts?
The law does not generally distinguish between private and business contexts so long as a non-public conversation is recorded without the consent of all participants. In both cases, this is prohibited and punishable under § 201 StGB. Especially in professional contexts (e.g., personnel discussions), the making of secret recordings can have far-reaching consequences, such as employment measures or the inadmissibility of such recordings as evidence in court. Secret recording is also prohibited in private situations; exceptions exist only for averting significant danger to life, limb, or freedom.
What role does the technical nature of the recording device play?
Legal protection extends to all technical means by which non-publicly spoken words can be recorded, monitored, or reproduced, irrespective of whether it is a classic dictation device, a smartphone, a smartwatch, or concealed microphones. The decisive factor is that the spoken word is technically captured without or against the will of those affected. Providing equipment or assisting in the recording can also lead to criminal liability. Thus, the type of device does not matter; what matters is the lack of consent from those recorded.
Do different rules apply to publicly spoken words or telephone calls?
Essentially, the same prohibition applies to telephone calls as to personal conversations; here too, recording without the express consent of all participants is a criminal offense (§ 201 StGB). Publicly spoken words, for example, during speeches at a public event or in media interviews, are not covered by this protection. In such cases, recordings can generally be made without specific consent because the speech is expressly addressed to the public. The distinction as to what is considered “public” must be examined legally in each individual case.
