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I find german privacy laws confusing especially regarding the law about recording privately spoken word. The maximum penalty is a fine or 3 years in prison. So how is this law applied in a scenario say where one friend records audio of another friend telling a silly joke in their apartment together ?

How is this law used in germany for innocuous scenarios like a friend recording another friend telling a joke etc without asking them / them necessarily being aware?

This question solely concerns the broad wording of the law and the potential heavy penalty in relation to situations of a non nefarious situation such as described above.

Cardgame482
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2 Answers2

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Was there consent is an objective fact

The evidence will show there either was consent or there wasn’t. The burden of proof that there was no consent lies with the prosecution and the standard is similar to the common law beyond reasonable doubt.

Providing the recording is made openly and notoriously rather than covertly, continuing to speak will be taken as consent to the recording.

Of course, someone has to make a complaint for the law to get involved.

Dale M
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You have to understand that there is no such thing as "making a secret, innocuous recording". That is as much a contradiction as "innocuous rape". Making a recording without consent is a crime. And all people know that and treat it that way. Even if someone wanted it, not asking or at least openly showing would be a huge breach of trust.

And works exactly as you would imagine it works. People just don't record each other, unless it's openly with consent. Why would we? What would it be good for?

For the video/audio to be legal, you need consent.

Without consent, recordings cannot be used in civil claims, no matter what. Even if they prove your point and don't actually breach any other privacy of the other party and handle nothing but the fact in litigation. They cannot be used. Decided by the highest court: BGH, Urteil vom 18.02.2003 - XI ZR 165/02.

And it can only be used in criminal proceedings if the crime is considered very serious compared to the breach of privacy ("Schwerstkriminilität"). So as an example if you record a thief that steals flowers from your garden, that might not be legal and usable in court without consent, while filming a murderer bury their victim there would certainly be.

In practice, if you want to be safe in court, you need written consent. This is what companies normally do if they record events. In addition, or sometimes as the only way to prove consent, you will have it at the start of the recording. Something like "This is Jane Doe sitting with prominent book author Max Mustermann, we are recording this on 15.10., welcome John. Hi Jane." This isn't as good as the written form, but it is good enough when it comes to a "he said/she said" situation over missing written consent later.

Assuming the fact that Alice made a video is in evidence, and someone in the video complains, it is on Alice to prove that she had consent of the people subject of the video and was allowed to make that video.

As with many legal matters, in he said/she said situations, the judge will have to make a decision on who they believe more.

The prisons aren't filled with people illegally recording others, because we don't. It was perfectly possible to not take video/audio wherever you go for the last 10.000 years, why would it be different now. Just because you technically can doesn't mean it's a good idea and we have to all the time.

nvoigt
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