Observing Crowd-Sourced Surveillance through the Eyes of the German Basic Law

By on June 29th, 2017 in Leading Edge, Magazine Articles, Privacy & Security

This piece briefly outlines the legal implications of surveillance, sousveillance, and “whistle-blowing” in a German human rights context. For the purposes of this article, surveillance is defined as the observation of citizens by the state, sousveillance as the observation of the state by citizens, and “whistle-blowing” as the observation of citizens by citizens.

The German perspective has been chosen as it has a reputation for being rather strict when it comes to privacy law as is evidenced, for example, by German resistance to the European Data Retention Directive in 2006.1 However, it is argued here that the laws applying in Germany with a view to data protection are sometimes more advanced than their application. A reason for this is the German (civil law/inquisitorial) legal system in which most evidence is treated as being admissible – this applies especially to the lower courts – although it has, in fact, been illegally obtained.

Germany’s attitude towards surveillance generally is extremely restrictive due to the horrifying experiences of World War II and the later established Eastern German surveillance state (1961–1989). The 1949 German Basic Law, which was drafted after the end of WWII, therefore established strict protections of privacy in Articles 1 (Human Dignity), 2 (Personal Freedom), 10 (Data Protection – Communications) and 13 (Inviolability of the Home). After reunification with the former German Democratic Republic in 1989, the protection of privacy by the courts could be seen to have increased even further (see case law below). The files that the Stasi (East German Secret Police) compiled on people during the time of its existence were after the end of the cold war secured in a state agency called “Gauck Behörde” (after the now German Federal President Joachim Gauck).

Ironically, it came to light in 2000 that the agency had made personal information available to researchers and journalists. After the then German Chancellor Helmut Kohl sued the agency for disseminating his personal information, this practice stopped.2

German case law, and in particular decisions of the German Constitutional Court (Bundesverfassungsgericht), show a very strict approach to data protection, in particular with a view to data gathered by the state. An important decision was reached in 20083 determining that Article 2 of the Basic Law guarantees the right to confidentiality and integrity of personal information within systems of information technology. It was determined that surveillance of a person through the use of such a system can only be justified if there is an overwhelming danger for other human rights outweighing the right to personal freedom. In 1970 the practice of data screening had been introduced in the fight against left-wing terrorism and in particular investigations against the Red Army Faction (RAF). This practice was outlawed by the German Constitutional Court in 20064 when the strategy was to be applied against suspected Muslim terrorist “sleepers.”

Decisions more directly aiming at acoustic and visual surveillance were reached by the court in 2004 and 2009. In 2004 the court decided that the far-reaching acoustic and video surveillance of private living space was unconstitutional.5 The German Federal Employment Court decided in the same year that the general surveillance of work space breached personal freedoms of the employee and was hence illegal.5 In 2009 the general video surveillance of motorways was declared unconstitutional and equally breaching personal freedom under the basic law.6 Only if there was suspicion of breach of a higher constitutional law, could surveillance be allowed. It follows from those decisions that surveillance through the state, as well as by citizen vs. citizen, has been declared unconstitutional (state) or illegal (citizen) under the German Basic Law. Case law on “sousveillance” does not yet exist. However, the discussion of surveillance and whistle blowing can give insights as to how such cases could be decided in the future.

The value of surveillance, sousveillance, and “whistle-blowing” could be determined on the background of its admissibility as evidence in both criminal and civil court procedures. It can be argued that the admissibility of sousveillance evidence (audio/video/photographs) in court could have significant impact on law enforcement behavior. The right to privacy under Article 2 of the Basic Law determines that nobody can use the picture of a person without his/her consent for display in public. The courts have decided that a “display in public” even applies to the use of pictures as evidence in a criminal/civil court process, as the court is considered to be an audience and “a public.”7 However, the right to informational self-determination can be weighed against rights infringed (proportionality). Therefore, surveillance can produce admissible evidence if the state action was permitted under judicial warrant, or if a private person had a direct suspicion, for example, that an employee is committing criminal offenses at the workplace. However, if persons other than the suspect are subject to surveillance, the video/audio/photograph cannot be used as evidence.8

Until 2001 the admissibility of private video surveillance evidence had never been questioned before criminal courts in Germany. Private videos had without fail been used by the courts to convict criminal offenders. This attitude changed drastically with the Magistrate Court Stuttgart decision (8 Cs 32 Js 61688/00) of 2001. The court determined that, if a video is taken in a private space accessible by the public, it needs to be obvious that recording is taking place or the consent of every recorded person has to be sought, or there has to be an official law enforcement purpose or suspicion for the recording. In any other circumstances, the Court considered the recording a breach of the Copyright Law (as the video/audio/picture was presented to “a public” in Court). This decision even led to the amendment of the German Federal Data Protection Law (§6(b)) in 2001. Strict limitations therefore apply today (depending on situational or fixed camera) for video/audio surveillance in private spaces open to the public.

With regard to private spaces not open to the public, there needs to be a suspicion of a crime being committed and no recording of any other persons, but the suspect, is to be conducted.9 This is today the situation with regard to both criminal and civil cases. Several civil cases did not admit private audio/video/photographic evidence as surveillance of non-suspects. As pointed out before, no case law on sousveillance so far exists.

With a view to the use of sousveillance as evidence in criminal and civil liability cases it can be foreshadowed that these would not be decided very differently from cases of “whistle blowing,” but the evidence would be less restricted than state evidence against citizens (restriction by warrant or “immediate danger” requirement). The proportionality principle (balancing of rights) applies in all three cases (surveillance/sousveillance/whistle blowing) as under the basic law no right can be infringed if this is not justified by an equal or higher right endangered.



Saskia Hufnagel is a lecturer in criminal law at Queen Mary University of London, London, E1 4NS U.K. Email: s.m.hufnagel@qmul.ac.uk.