Is it allowed to film police operations?

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When the police arrive for an operation, they are increasingly faced with smartphones that have already been drawn out. Those affected or passers-by film what is happening on site. You want to document – just in case. When the African American George Floyd was killed by a white police officer during an arrest in the US city of Minneapolis in 2020, the process would probably have taken a different course, it would not have sparked the same discussion about police violence had it not been for the smartphone video footage of indeed would have given. Also in Germany there are cases , in which people want to record suspected attacks by the police in images and sound. However, anyone who films police operations is at risk of prosecution.

The police and public prosecutor’s office have not been relying on Section 201 of the Criminal Code (StGB) for too long. The rule penalizes those who record confidential conversations without consent. The paragraph is about the sound recording, not the image.

The legal situation surrounding the recording of police operations is anything but clear. There are courts who consider the recordings to be punishable and those who consider the recording to be unpunished. As is so often the case in law: It depends. Most recently, at the beginning of October, the Osnabrück Regional Court rejected the criminal liability of an admission and made basic statements: The 10th Major Criminal Chamber decided that the protective concept of the provision did not even apply to actions by the police.

Techniques related to video recording during police operations are not entirely new. With the spread of technically more sophisticated smartphones, they have increased over the past few years. Police officers regularly seize smartphones when they realize that they are being filmed and assume that the situation is confidential. If those affected then defend themselves against the seizure, the cases end up in court.

A discovery in the criminal code

For some time, however, the police and public prosecutor’s office did not fall back on the StGB in these cases, but on a criminal offense in the Art Copyright Act (KunstUrhG). Sections 22 and 33 of the KunstUrhG punish those with a custodial sentence of up to one year who disseminates a portrait of someone without their consent. The criminal liability is not linked to the inclusion, but only to a later dissemination. Recording was punishable if the recording was then uploaded to the Internet, for example.

In 2015, a decision by the Federal Constitutional Court (BVerfG) marked a turning point. The Karlsruhe court reached a case in which police officers were filmed at close range during a demonstration. The police had argued that it can be assumed that the recordings were made in order to later publish them.

The BVerfG did away with this argument in its decision. There is a threat of a deterrent effect if “taking photos or video recordings of a police operation with reference to the mere possibility of a subsequent criminal violation of the right to one’s own image (…) should suffice to carry out police measures (…).” The assumption that a recording should be used for later publication is no longer sufficient for an allegation of criminal liability.

Prof. Dr. Fredrik Roggan from the Brandenburg Police College observed an “evasive movement” as a result. Suddenly the police and public prosecutors no longer referred to the KunstUrhG, but to Section 201 of the Criminal Code.

Criminologist: “The police are looking for a lever to be able to take action against the filming of their operations in practice.”

An astonishing process, says Prof. Dr. Tobias Singelnstein, criminologist from the Ruhr University Bochum. He asks himself: “Why did Section 201 StGB never play a role in such cases before the decision of the BVerfG? Why do the public prosecutors suddenly come up with the idea of ​​activating this paragraph?” Singelnstein is convinced that the video recording cases are pressed into a criminal offense for which the provision is not intended. “The police are looking for a lever to be able to take action against the filming of their operations in practice.”

From the outset, Roggan considers Section 201 of the Criminal Code to be fundamentally inapplicable to filming of police operations. “The regulation obviously wants to protect the impartiality of the conversation, the fleetingness of words. But I don’t see any room for that in police communication.” What police officers do on duty has always been geared towards controllability. Your actions could later be checked before an administrative court, many measures such as the identification of persons are strictly formalized processes, instructions are, moreover, formulaic. According to Roggan, official interviews with the police did not fit into the system of criminal norms under the section headed “Violation of personal life and privacy”.

In addition, Roggan points out that the legislature has given the police – in NRW about § 15 c Police Act – the opportunity to use their body cam in public places. This confirms that official words spoken by police officers with a citizen can never be non-publicly spoken words.

Roggan wants to make an exception when it comes to purely internal consultations or when police officers talk to each other about private matters and their conversation is recorded.

This is the direction taken by the decision of the LG Osnabrück from the end of September 2021: The provision of § 201 StGB serves the constitutionally guaranteed free development of the personality by guaranteeing the impartiality of oral statements. “An official whose actions are legally bound and, as such, are subject to legal review, do not need protection of impartiality,” the decision said. Statements in connection with official acts of the police in publicly accessible places are to be classified as factually public. A third party must be expected there. In the opinion of the Regional Court, the requirement of the “non-public”, i.e. confidential spoken word, which is required by Section 201 of the Criminal Code, is therefore lacking. The recording of such conversations would in principle be permitted. The judges want to differentiate according to the specific situation. If the police officers shield themselves during a briefing, for example, what is said there can be protected.

That’s what the courts say

The previous case law of the courts on the recordings is not uniform, but now a line seems to be emerging. Around half a dozen decisions have been made. As far as can be seen, the district court (AG) and the LG Munich were the first courts to deal with Section 201 of the German Criminal Code and police operations in 2019. A defendant was convicted of filming a verbal argument between a demonstrator and a police officer. According to the Munich Regional Court, it is irrelevant that the words were used on public traffic grounds. Rather, it was decisive that the police officers took the person aside. The officials had directed their words only to this person, the fact that another person was also present was irrelevant. For a “factual public” that was not enough for the LG.

The LG Frankenthal saw it similarly at the end of 2020, which confirmed the seizure of a smartphone because there was initial suspicion for Section 201 of the German Criminal Code. Someone had filmed a police operation on a street in Ludwigshafen am Rhein. With its decision in favor of criminal liability, the LG set itself apart from the lower court. The AG Frankenthal had given quite detailed justifications against the applicability of the penal provision in public space: “If third parties are therefore able to eavesdrop on conversations, a” factual public “can exist, which is regularly to be affirmed in public places A police officer does not regularly make a ‘non-public’ statement to a person in the context of an open-air operation. ”

The LG Kassel, the LG Aachen and most recently the LG Osnabrück have doubts as to whether § 201 StGB can easily be used for the recording of police operations. In its decision of 2019, the LG Kassel assumes that the recording of identity checks by the police in public spaces does not constitute a non-public conversation. It even goes one step further. Even if they do, only the information provided by the person being checked should be worthy of protection. So it would depend on whether the person concerned agrees with the recordings. The questions raised by the police officers, on the other hand, are only “of an introductory nature without any noteworthy explanatory content; everyone is familiar with what is meant by the fact that the police collect personal data,” according to the Kassel Regional Court.

If there are differences in the individual cases, the view seems to prevail among the courts that conversations filmed with audio between police officers and citizens in public spaces are generally not punishable under Section 201 of the Criminal Code. If the officers on site create a shielded conversation situation, this will have to be assessed differently. Especially when they then talk to each other or to their headquarters about the situation.

Where is the fundamental decision?

Such a case has not yet made it to the next higher instance of the higher regional courts. In cases in which the court only concerned the confiscation of a smartphone, there are only two instances: the AG decides first; if a complaint is filed against it, it is the turn of the regional court. And that is the end of the process.

The situation is different in the cases in which the public prosecutor’s office charges against Section 201 of the German Criminal Code. Then such a case could also reach an OLG – or even the Federal Court of Justice – via appeal and appeal. There aren’t many such charges that have made it to court. In the proceedings that preoccupied the Frankenthal courts, the public prosecutor applied for a penalty order.

In the case at the Munich Regional Court in 2019, the defendant decided against taking the case to the next instance. In the case of the LG Aachen, the defendant is likely to have been satisfied with the decision, and the public prosecutor apparently did not want to continue the proceedings either. And so it will take some time before a decision by the next instance brings more clarity to the legal situation.

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