In a recent ruling by the Heidelberg Regional Court (dated August 5, 2024 – 4 O 44/24), the complex issue of admissibility of secretly recorded audio tapes in civil proceedings was discussed.
In this case, the plaintiff secretly recorded a conversation with the defendant following a dispute between neighbors. The defendant repeatedly insulted the plaintiff, and the court had to decide whether this secretly obtained recording could be admitted as evidence, even though the defendant had not initially consented to the recording. This decision highlights the delicate balance between criminal liability and the admissibility of modern forms of evidence in German courts.
Facts of the Case
The plaintiff and the defendant were neighbors and co-owners of a residential complex. Their relationship was tense, mainly due to disputes over parking spaces.
On the evening of March 31, 2023, another conflict escalated, during which the defendant insulted the plaintiff. The plaintiff recorded this incident with her smartphone without informing the defendant. About 15 seconds into the recording, she informed the defendant, who then stated multiple times that she could continue recording the conversation. The court now had to determine whether this recording could be used as evidence, as it played a central role in the case.
Legal Assessment
Violation of Personality Rights and § 201 StGB
Secret recordings without the consent of the person involved generally constitute a violation of personality rights and a breach of § 201 StGB, which criminalizes the unauthorized recording of non-public speech. The Heidelberg court acknowledged this, but also emphasized that such a breach does not automatically lead to the exclusion of the evidence. Instead, an interest-balancing approach must be applied.
Balancing of Interests
The court weighed both the personality rights of the defendant, which were infringed by the secret recording, and the legitimate interest of the plaintiff in pursuing her civil claims. The plaintiff aimed to document the defendant’s insults and threats, which she felt were crucial to her case.
Consent to the Recording
A key argument of the court was that the defendant, after being informed of the ongoing recording, explicitly stated that the plaintiff could continue recording. The Heidelberg court viewed this as valid consent for the subsequent statements made by the defendant. However, the court did not admit the earlier parts of the conversation that were recorded without his knowledge.
Admissibility Without Consent
Even if the first 15 seconds were deemed as secretly recorded, the court still allowed the recording to be admitted. This decision was based on the plaintiff’s need for evidence and the defendant’s subsequent consent. In such cases, the plaintiff’s interest could prevail.
Illegality of Secret Recordings
In several blog posts, I have discussed the issue of the illegality of secret recordings, which are generally punishable under § 201 StGB. Especially in the areas of cybercrime and data protection, the question often arises whether unlawfully obtained digital evidence can be used in court. In these cases, the balance between protecting personality rights and the pursuit of truth plays a central role.
As I have frequently emphasized, a violation of the law does not necessarily lead to the exclusion of evidence. What matters is the balancing of interests. Particularly when a plaintiff is in need of evidence or the defendant consents after the fact, the recording may be admissible. The Federal Constitutional Court (BVerfG) has also ruled on this issue several times.
Secret Audio Recordings at the BVerfG
The ruling of the Heidelberg court on the admissibility of secret audio recordings reflects a modern legal development based on the 1973 BVerfG ruling. In that decision (January 31, 1973 – 2 BvR 454/71), the BVerfG set out the standards for when secretly made audio recordings may be admissible. These principles have evolved in light of contemporary case law.
In 1973, the BVerfG ruled that the right to spoken words is part of the general right of personality under Article 2(1) of the Basic Law. Everyone has the right to decide who can record their words. However, this protection is not absolute. In exceptional cases, when the public interest prevails, the right to exclude a recording can give way.
In a more recent 2020 decision (1 BvR 495/19), the BVerfG confirmed that secret recordings generally violate personality rights, but an individual assessment is required. In that case, conversations were secretly recorded during a court session break to support a recusal motion against judges. The BVerfG ruled that the lower court had misunderstood the right to a lawful judge under Article 101(1) Sentence 2 of the Basic Law and overturned the lower court’s decision.
Conclusion: Admissibility of Secret Audio Recordings
The Heidelberg court’s decision illustrates that secret audio recordings are not automatically inadmissible. Even if personality rights and § 201 StGB are violated, the balance of interests can tip in favor of the party presenting the evidence, especially if the defendant later consents to the recording. The fundamental principles established by the BVerfG in 1973 remain relevant today.
The core issue remains the balance between personality rights and the interest in discovering the truth. While the BVerfG set clear limits on government intrusion into private speech, courts have refined this line, considering factors such as evidentiary need, implied consent, and the specifics of each case when determining admissibility.
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