Filming police operations – is that allowed?

Status: 01/29/2022 11:26 am

During demonstrations against the Corona policy, there are repeated calls to film police operations. Whether this is allowed is legally disputed.

By Markus Sehl and Claudia Kornmeier, ARD legal department

There have been regular demonstrations against the Corona policy for weeks, and violent clashes with the police occur again and again. On social media, groups calling for meetings recommend keeping cameras ready and recording any conflict.

The Berlin campaign for victims of racist police violence has a completely different political background. It too has been spreading the motto “Go film the police” for a few weeks. The campaign is intended to specifically motivate witnesses to film escalations during police operations. They are also interested in documentation.

Police operation – a “confidential conversation”?

The spread of smartphones with better and better equipment means that the police now have to assume that they will be filmed during their operations. Those affected or passers-by point their smartphones at the officers.

From a legal point of view, it is an unsafe situation – for both the filmmakers and the police officers. Because legally it is anything but clear when recordings of the operations and publication of these recordings are permitted. And when the emergency services are allowed to confiscate smartphones.

The police and public prosecutors assume that recording is not permitted during police operations. They rely on Section 201 of the Criminal Code, which makes the audio recording of confidential conversations a punishable offence. In law, that doesn’t convince many: “I don’t think this provision is applicable to conversations between police officers in action, given its basic orientation,” says police law professor Markus Thiel from the German Police University in Münster. The privacy of citizens is to be protected, not business calls.

courts at odds

In recent years, around a dozen courts have had to deal with the question – their answers have varied. Nevertheless, a trend is emerging: as a rule, conversations between police officers and citizens in public spaces that are filmed with sound are not punishable. However, if the officers on site create a shielded, and thus private, conversation situation, this can make recording a punishable offense.

The Osnabrück Regional Court last decided in this direction in autumn 2021. Paragraph 201 of the Criminal Code serves the constitutionally guaranteed free development of personality by ensuring the impartiality of oral expression. Police officers should know that their work can always be legally checked. These are not unbiased conversations. What is said during police operations in public places should be classified as “factually public”. In such situations, it must be expected that others will overhear.

Similar decisions were made by the regional courts in Aachen and Kassel, as well as by some local courts. The district courts of Munich and Frankenthal decided differently. They assumed criminal liability under Section 201 of the Criminal Code, regardless of the opportunity to listen in.

Exception to the publication ban

However, police officers would not be completely unprotected under criminal law even if the paragraph should turn out to be inapplicable. Because there is a provision in the Art Copyright Act that does not penalize the recording, but the subsequent publication against the will of the people depicted.

However, there may be an exception to this publication ban in the case of important contemporary events. Police officers then have to be pixelated so that they cannot be easily identified.

The police officers have no choice but to observe the dynamic legal situation, as Thomas Fürst, instructor at the Police Academy in Münster, says: “We have to pay careful attention to the development of the law.”

Waiting for a landmark decision

There is currently no prospect of a change in the legal situation. A fundamental decision by a higher regional court or even the Federal Constitutional Court could provide more legal certainty. But most cases of filmed police operations have not yet reached the highest courts. If citizens defend themselves against the confiscation of their smartphones in court, there are only two instances – after the district court and the regional court, the legal process is over.

If the public prosecutor’s office brings a case to court, the district court is initially responsible. In the previously known cases, the proceedings were over after the district court at the latest, because neither side wanted to pursue the case further.

But that will change. The Zweibrücken Higher Regional Court is dealing with the case of a young woman who filmed a police check on corona measures in Kaiserslautern in the summer of 2020 and was allegedly the victim of police violence. It will have to be clarified whether the woman was allowed to film the operation.

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