Unauthorized Disclosure of Secrets – Concept and Legal Principles
The unauthorized disclosure of secrets is a significant concept in German criminal and civil law. It refers to the unlawful transfer of confidential information by individuals who were entrusted with such information within certain relationships of trust. Essential legal provisions are found in Sections 203, 204, and 205 of the Criminal Code (StGB) as well as related statutory regulations.
Significance and Distinction of the Term
Definition of the Disclosure of Secrets
The unauthorized disclosure of secrets means passing on or revealing information that was entrusted to a person as a confidential party within a special relationship of trust or otherwise became known to them. The disclosure occurs without the consent of the authorized party and without a statutory justification.
Definition of ‘Secret’ in the Legal Context
Under German law, a secret refers to facts, circumstances, or occurrences that are known only to a limited group of people and for which there is a legitimate interest in confidentiality. This applies in particular to personal, economic, or operational data that are not generally accessible.
Criminal Law Regulations
Section 203 StGB – Violation of Private Secrets
The central criminal offense is Section 203 StGB, which penalizes the disclosure of secrets by certain professional groups obliged to maintain confidentiality. Among these are, for example:
- Physicians and members of other health professions,
- Legal professionals and notaries,
- Social workers,
- Marriage, family, education, and youth counselors,
- Members of certain administrative bodies, provided they learn secrets in their official capacity.
It is a criminal offense to disclose a secret that was entrusted to one of these confidential parties in the course of their profession or official duties, or otherwise became known to them. This provision protects the affected individuals from the unauthorized dissemination of sensitive data.
Subjective and Objective Elements of the Offense
- Objective Element: The secret must have been obtained within the scope of the trust relationship, and the perpetrator must ‘disclose’ it, i.e., make it accessible to a third party.
- Subjective Element: The perpetrator must act intentionally, i.e., be aware of the secret and the lack of authorization to disclose it.
Sanctions
The law provides for imprisonment of up to one year or a fine; in particularly severe cases, the penalty may be higher.
Special Provisions in Other Areas of Law
Section 204 StGB – Exploitation of Another’s Secrets
Section 204 StGB also criminalizes the exploitation of a secret protected by Section 203 StGB, by making use of it without directly disclosing it to third parties. This provision aims to prevent economic disadvantages for the secret holder.
Section 353b StGB – Violation of Official Secrets
For individuals in public service, Section 353b StGB governs the protection of official secrets and particularly sensitive state secrets. Here too, unauthorized disclosure is a punishable offense.
Civil Law Aspects
Claims for Injunctive Relief and Damages
In the case of unauthorized disclosure of secrets, civil law claims for injunctive relief or damages may arise, in particular pursuant to Sections 823 et seq. BGB (German Civil Code). Such a claim requires that the disclosure violated the general right of personality or another absolute right.
Confidentiality Obligations in Contractual Relationships
In many professional and business relationships, confidentiality obligations are contractually agreed upon. A violation can lead to claims for damages as well as employment law consequences.
Justifications and Exceptions
Consent of the Secret Holder
Disclosure is not unauthorized if the affected person has expressly or implicitly consented. Valid consent requires that the affected person acts with knowledge of all relevant circumstances.
Statutory Disclosure Obligations
In certain situations, there may be a statutory obligation to disclose, for example, in the context of mandatory reporting of certain notifiable diseases or obligations to testify before law enforcement authorities. However, the respective legal bases and limitations must always be observed.
Predominant Public Interest
Unauthorized disclosure may exceptionally be justified where there is an overriding public interest or a state of justified necessity (§ 34 StGB). However, this is to be interpreted restrictively and requires a strict balancing of all interests.
Relationship to Data Protection Law
The disclosure of secrets often overlaps with data protection regulations, particularly the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG). The transfer of personal data can meet the criminal offense of unauthorized disclosure as well as constitute a data protection violation.
Consequences of Unauthorized Disclosure
Criminal Consequences
If the criminal offense is fulfilled, imprisonment or a fine may be imposed. For professional groups with special confidentiality obligations, there may also be a risk of losing their professional license or dismissal.
Civil Law Consequences
In addition to claims for injunctive relief and damages, claims for compensation for pain and suffering may exist pursuant to Section 253 BGB, especially where the right of personality has been violated.
Professional and Employment Law Consequences
Violations of confidentiality obligations regularly also lead to professional or employment-related sanctions, such as warnings, dismissal, or withdrawal of licenses.
International Comparison and Significance
Other countries also impose criminal and civil penalties for unauthorized disclosure of secrets, though the specific regulations sometimes differ significantly. Within the European context, harmonized rules exist, for example, in data protection law.
Summary
The unauthorized disclosure of secrets is comprehensively regulated under German law and protects the relationship of trust between confidential parties and their clients, patients, or principals. The provisions serve to protect sensitive personal and economic interests and apply in both criminal and civil law. Justifications and statutory allowances must be interpreted narrowly. A violation may have far-reaching criminal, civil, and professional consequences.
Further Reading
- Loos, “Confidentiality Obligations and Disclosure Obligations in the Liberal Professions,” Munich 2022
- Fischer, Criminal Code Commentary, Section 203 StGB
- Palandt, German Civil Code with Supplementary Laws, on Sections 823, 1004 BGB
See also
- Confidentiality Obligation
- Data Protection
- Right of Personality
- § 203 StGB
- § 204 StGB
Note: The above explanations are for general informational purposes only and do not constitute legal advice for individual cases.
Frequently Asked Questions
What does criminal liability for the unauthorized disclosure of secrets mean?
The criminal liability for the unauthorized disclosure of secrets is regulated in German law, particularly in Section 203 of the Criminal Code (StGB). This is a criminal offense prohibiting certain professional confidential parties, such as doctors, Rechtsanwalt, pharmacists, psychotherapists, and certain officeholders, from disclosing personal or entrusted secrets to third parties without legitimate authorization to disclose. Liability depends on the existence of a ‘secret’ that is known only to a limited group of people and for which there is a legitimate interest in confidentiality. Violations can result in imprisonment of up to one year or a fine. The provision thus protects the special relationship of trust between holder and giver of secrets and aims to safeguard personal, economic, or other significant interests.
Who may be considered a perpetrator of unauthorized disclosure of secrets?
Only certain groups of individuals legally bound to confidentiality obligations may be considered perpetrators under the relevant provisions. These professional confidential parties include, among others, doctors, psychotherapists, Rechtsanwalt, notaries, defense attorneys, auditors, tax consultants, patent attorneys, pharmacists, as well as their professional assistants and those preparing for such a profession. In addition, officeholders—especially civil servants, judges, and other public officials—are obliged under additional statutes (e.g., Sections 353b, 355 StGB) to maintain official secrets. Other persons may also be criminally liable as participants (instigators or accomplices) if they assist in the unauthorized disclosure.
What conditions must be met for a disclosure to be considered ‘unauthorized’?
A disclosure is considered ‘unauthorized’ if there is no legal permission or consent of the affected person. The decisive factor is whether there exists a conflicting legal obligation or a legitimate interest that requires confidentiality. The disclosure is unauthorized if it occurs outside the legally permissible boundaries. Relevant exceptions include reporting obligations to authorities (e.g., notification requirements for infectious diseases), authorization to disclose on the basis of written consent by the holder of the secret, or the existence of a justifying necessity (§ 34 StGB). In the absence of such legitimation, disclosure is impermissible and punishable.
What types of secrets are protected by criminal law?
Both personal and economic/operational secrets that are entrusted to a person in their capacity as a confidential party or otherwise become known to them are protected. This includes, in particular, health data, diagnosis and treatment data for doctors, tax and economic circumstances for tax consultants, or client data for lawyers. The information must be such that its disclosure would cause a disadvantage to the holder of the secret or, at least, justify a legitimate interest in its confidentiality. Obvious facts—i.e., those generally known—do not enjoy criminal protection under Section 203 StGB.
To what extent is communicating secrets to third parties—such as family members or colleagues—punishable?
Disclosure to individuals with whom there is a special relationship of trust, such as family members, partners, or colleagues, is also covered by the criminal protection of secrets if no consent is given or no legal authority exists. The law refers solely to disclosure ‘to another,’ regardless of the relationship between confidential party and recipient. Even telling others in private, without the intent to publicize, will generally satisfy the elements of the offense of unauthorized disclosure. The duty of confidentiality therefore applies unrestrictedly to everyone.
What sanctions can be imposed for unauthorized disclosure of secrets?
Various sanctions may be imposed depending on the relevant legal provision. Violations of Section 203 StGB are punishable by imprisonment of up to one year or a fine. In particularly serious cases, or when other legal interests are also violated (e.g., betrayal of state secrets), higher penalties may be provided for. In addition to criminal consequences, professional consequences such as the withdrawal of a medical license, revocation of professional permits, or disciplinary measures may ensue. Secret holders may also assert claims for damages under civil law.
