German Federal Court of Justice (BGH), order of 18 August 2020, 5 StR 175/20

1 Overview

A private video recording that spontaneously contributed to solving a homicide was used as evidence in criminal proceedings even though the recording was not covered by a valid legal basis. The appeal on points of law argued that using the recording infringed requirements of data protection law, copyright law and the right of personality. The Fifth Criminal Panel dismissed the appeal.

2 Headnotes

An infringement of data protection provisions, in particular of Article 6(1)(f) GDPR, does not automatically result in a prohibition on the use of the evidence in criminal proceedings. Rather, a comprehensive balancing exercise must be carried out in the individual case. Account must be taken of the weight and the nature of the breach of data protection obligations, of the interests of the data subject and of the general interest in an effective system of criminal justice.

A prohibition on the use of the evidence is precluded in particular where the recording was made spontaneously by a private individual and without any state instigation and where the infringement of the GDPR is not serious.

3 Significance

The decision clarifies the interplay between unlawfulness under data protection law and the use of evidence in criminal procedure. It forms part of a line of authority that includes the dashcam decision of the Sixth Civil Panel (BGH, judgment of 15 May 2018, VI ZR 233/17): unlawfulness under data protection law does not necessarily entail a prohibition on the use of the evidence, but leads to a balancing of interests in the individual case. For the purposes of the data protection assessment, the infringement of Article 6 GDPR remains independently subject to sanctions (Article 83 GDPR, compensation under Article 82 GDPR).