Court: Secret camera in a roommate's room is not punishable per se

Section 201a of the German Criminal Code (Strafgesetzbuch, StGB) protects the most personal sphere of life and other personal rights against secret spying through image recordings. Nevertheless, not every photo or video taken in a private space is punishable. This was decided by the Hamm Higher Regional Court (Oberlandesgericht, OLG) on March 18 (case no. ORs 24/25); the decision has now been published. According to the ruling, the "violation of the highly personal sphere of life of the person depicted", i.e. their privacy, is also required for criminal liability.

In the case, the defendant secretly set up a video camera with a motion trigger hidden behind a mobile container in a roommate's room in July 2023. According to the ruling, the flatmate discovered the surveillance device a day later by chance while cleaning. During the main hearing at Warendorf District Court, the public prosecutor presented images that police officers had printed out after analyzing the memory card.

"The quality of these images is rather poor," noted the court of first instance. For example, a clothed person was recorded, but this person was not recognizable. Only the thighs, the lower part of the upper body and a hand with a book or exercise book can be seen. Essentially, the roll of the container can be seen again and again in the videos. The witness can only be seen casually and dressed. Finally, the cleaning of the room with the mop can be seen.

The camera was aimed at the bed

In September 2024, the district court sentenced the defendant to a fine of 50 daily rates of 100 euros each, i.e. 5,000 euros, after confiscating the seized camera and SD card in accordance with Section 201a StGB . The maximum penalty would have been up to two years' imprisonment.

The judges in Warendorf justified their verdict by stating that the room was the home of the person being spied on at the time and that it was his registered address. Even though he was "frequently elsewhere", it was "his most personal living space". "The camera was pointed at his bed", the court of first instance stated. In particular, the recording of parts of the body while reading was to be considered a highly personal image. This did not require a nude photograph. There could be no question of coincidence.

The defendant appealed on points of law. Successfully, at least for now. The OLG set aside the contested judgment and referred the case back to another division of the Warendorf district court for a new hearing and decision.

"Neutral" actions may be recorded

According to the Higher Regional Court, the defendant had made unauthorized recordings of another person in their home. However, criminal liability could not be established based on the images inspected. In particular, "the areas of illness, death and sexuality" would have to be affected. In principle, recordings subject to criminal liability included "the inner world of thoughts and feelings with their external manifestations such as confidential letters and diary entries" as well as matters "for which, by their nature, there is a right to secrecy" such as state of health, details of sex life and nude photos. Certain facts from family life are also considered to be part of the highly personal sphere of life. This does not apply to images of "neutral" activities such as working, cooking, reading, watching TV, eating or sleeping in the home – unless there are special circumstances in individual cases.

According to the OLG, it cannot be ruled out that the video files do not include recordings that impact the highly personal sphere of the person concerned. The local court should examine this. It correctly assumed that nude images do not necessarily have to be present to violate criminal law.

Criminal law expert Jens Ferner welcomes the decision, as it sharpens the contours of the norm and protects it from "excessive expansion". It is also significant for data protection and civil law discussions on the scope of personal rights.

(vbr)