What is act of evidence
Do secretly recorded recordings, photos, videos have evidential value?
There are always cases in the headlines in which secretly made videos, photos or audio recordings play a prominent role. The originators pursue very different motives: Sometimes they use the secretly recorded material to blackmail someone, sometimes they want revenge or simply entertain the network community. But some authors also hope to be able to present secretly recorded conversations as evidence in court proceedings and thus to strengthen their own position in them.
But the legal evidential value of secretly obtained information is questionable, at least in the case of audio recordings. "Conversations recorded secretly may not be used in court," says the Bremen lawyer Jörn H. Linnertz from the Civil Law Committee of the German Lawyers' Association (DAV). "Because such audio recordings are subject to a prohibition on the use of evidence." This applies at least if the conversation partner did not know about the recording and did not agree to it.
Secretly recording conversations: a criminal offense?
Anyone who violates the information obligation and secretly records it not only does not secure any evidence, but is also liable to prosecution. "Anyone who takes up unauthorized conversations is committing a criminal offense under Section 201 of the Criminal Code," says lawyer Jörn H. Linnertz. "It is a 'violation of the confidentiality of the word'". The criminal code provides for fines or imprisonment of up to three years for this offense.
The fact that secret recordings are not usable under civil law in court and are prohibited by law has the following reason: The legislature gives the free speech a high priority and wants to ensure that people do not always have to carefully weigh each of their words and that words can also remain fleeting . In addition, there is the protection of the personal rights of those involved in a conversation.
Can you secretly take photos or record videos of someone?
In contrast, the legislature is less strict with visual material such as photos or videos. "Secretly taken photos or videos are permitted in court within limits and can be used as evidence," says lawyer Jörn Linnertz. So if you hired a detective to take potentially compromising photos of your ex-partner, you could use these photos as evidence against the other in court in the event of a divorce case. Usually this only makes little sense under current family law. Permanent video surveillance is prohibited in labor law. The video surveillance must also not be used for eavesdropping by means of a sound recording.
But even secretly taken photos or videos are legally problematic. Because they can violate a person's personal rights if they are published without the consent of the person pictured. Unauthorized publication can, depending on the context, also constitute offenses of honor. Compensation for pain and suffering is also threatened.
Checking someone else's cell phone or secretly rummaging through their documents - prohibited?
If you are looking for compromising material against someone else and come up with the idea of secretly checking their cell phone, you must also be careful. "You make yourself liable to prosecution if you use a stranger's cell phone without permission by obtaining the access code without their consent," says lawyer Linnertz. “This also applies to the partner's mobile phone, legally they are also considered a 'stranger'.” Such behavior can be spying on data. This information cannot be used in court.
It looks a little different when looking for incriminating material without asking in someone else's documents. Whether a court will accept this material as evidence depends on where it was found. “If the documents were freely accessible and were on the shared desk, for example, you can take note of them. They can certainly be used as evidence, ”says Jörn Linnertz.
The law provides otherwise if the documents were secured, they were in a safe and you open it without authorization and then take the material with you or take a photo. “Such information is generally not admissible as evidence in court,” explains lawyer Linnertz.
Often you do not have to rely on illegal information gathering to support your own position in court. Because apart from any kind of secrecy, it is possible to submit an application to the court for certain documents to be presented. That means: The opposing side has to submit certain material to the court if you apply for it. It is therefore advisable to go this route instead of relying on secrecy.
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