Video Evidence in Court – The Federal Court of Justice Provides Clarity.

In its decision, the Federal Court of Justice VI ZR 1370/20, has clarified the use of video recordings in legal proceedings. We have summarized below what this decision means for businesses and how it relates to the practice of imposing fines.

The Case

The proceedings involved a state-owned housing company and a private individual. The private individual was a tenant in two apartments. Following a police intervention due to a noise disturbance, the housing company discovered that the defendant had sublet several rooms to students and issued her a warning. 

The company hired a private investigation firm, which monitored the entrance areas of the apartments with hidden video cameras from the stairwell for one month. The firm saved the recordings and compiled a log detailing when specific individuals had entered and exited. This confirmed the suspicion that subletting was still taking place.

Consequently, the housing company demanded that the private individual vacate and surrender the two rental apartments. The individual, in turn, filed a lawsuit, arguing that the company had obtained the information unlawfully.

The Decision

In the court’s view, the housing company has no right to demand eviction. The lease agreements for the apartments remain in effect without termination.

The reason for this was that the information submitted as evidence had been obtained in a manner that violated fundamental rights and was therefore not admissible. There was neither consent from the individuals concerned nor a reason to permit the video surveillance of the apartment as an exception. Furthermore, the area being monitored was not public. Furthermore, surveillance involving the video recording of individuals on a permanent storage device constitutes automated processing of personal data.

The court stated that there would have been less intrusive means of obtaining the information necessary for termination of the lease. For example, the housing company could have employed measures that better protected fundamental rights, such as targeted sham leases or questioning neighbors, building staff, and other third parties.

Analysis

With this decision, the Federal Court of Justice clarifies the situation regarding the use of secretly recorded video footage in legal proceedings. Whereas in past proceedings where decisions were still made without regard to the GDPR, the BGH once again emphasizes the importance of data protection. The question of whether evidence obtained by a party through unauthorized video surveillance may be used in judicial decision-making must be assessed in light of the requirements of the General Data Protection Regulation. Serious data protection violations can thus overturn even proceedings believed to be secure. The home as a sanctuary, the GDPR as a shield.

Important for businesses

All video surveillance should be well thought out and properly reviewed for admissibility. In its decision, the Federal Court of Justice (BGH) explicitly points to less intrusive measures. This is where companies should start. After all, should a legal proceeding come down to a showdown, a covert video recording could be ruled inadmissible as evidence—or become very costly, as a look at the fines imposed shows.

Fines for Unlawful Video Surveillance

The fact that the issue of unlawful video surveillance plays a major role not only in court decisions is also underscored by the fines imposed. Fines are repeatedly imposed for unlawful video surveillance, as in Germany and Spain.

Just how costly unauthorized video surveillance can be is illustrated not least by the case of notebooksbilliger from 2021— at that time, the online retailer was finedof over 10 million EUR for the unlawful video surveillance of employees and customers over a period of at least two years.

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