Document fraud via email: Why the photo of a forgery is not a forgery

In an era where the paperless office and digital communication with authorities are intended to become the standard, classic document law often seems like a relic from the era of wax seals. However, the question of what counts as evidence in the digital space and what is sanctioned is highly topical. The Bavarian Higher Regional Court (BayObLG) recently had to deal with a case that redefines the boundaries between punishable forgery and legally irrelevant tinkering with image files. The decision now available, dated November 14, provides clarity in an area that is gaining massive importance due to the increasing acceptance of emails as an official means of communication (Ref.: 206 StRR 368/25).

The starting point of the proceedings reads like everyday computer tinkering with fatal consequences. A woman had modified a genuine letter from a law firm on her computer, edited the text, and printed out the result. She then took a photo of this manipulated document and finally sent the image file via WhatsApp and email to a third party.

Formal deficiencies and the limits of a document

The document had a crucial flaw, as it lacked any signature or a customary closing. Only the letterhead and the altered text body were visible. While the lower courts still saw this as a classic document forgery, the judges at the BayObLG acquitted the accused.

The reasoning delves deep into the dogmatics of German criminal law. A document in the classic sense requires an embodied declaration of intent that identifies an issuer and is suitable for providing proof in legal transactions. In the case of a lawyer's letter, the signature is an essential part of the standard repertoire of authenticity.

If these characteristics are missing, from a legal perspective, it is merely a non-binding draft without evidentiary value. The court clarified that a photocopy or a scan that is outwardly recognizable as a mere reproduction is not a document within the meaning of the law.

Digital data and the protection of legal transactions

Even if computer processing creates the appearance of a genuine document, the typical characteristics of the original must be present to establish a serious risk of confusion. Likewise, the BayObLG did not consider the offense of forging evidential data according to Section 269 of the German Criminal Code (StGB) to be fulfilled.

This clause was created to punish manipulations of data sets that are not physically embodied, such as electronic registers. However, the Munich judges emphasized that an image file that is recognizably only a photo of a document functions merely as secondary evidence. It does not claim to be the original declaration itself but merely refers to a – here manipulated – paper source. Thus, it lacks the quality of an original declaration carrier, which would be absolutely necessary for a conviction under the "digital paragraph."

According to IT lawyer Jens Ferner, this legal differentiation has enormous practical implications, as it sends a signal against the blanket criminalization of digital copies. Users remain in the realm of impunity as long as attachments are clearly recognizable as reproductions and do not create the impression of a "digital original." However, carelessness is not advisable. Those who submit forged scans to gain advantages can still be prosecuted for fraud. Prerequisite: A financial loss must be demonstrable. In the present case, this was not the case due to a lack of intent and damage.

(mma)