Smart glasses in the courtroom: New technology, new legal questions

Last week, an incident at the British High Court of Justice made headlines. A plaintiff allegedly wore smart glasses while testifying and received advice from a person not present. The court initially did not notice this, as modern smart glasses are often only recognizable as such at second glance. In her ruling, the judge dismissed the testimony, ruled in favor of the defendant, and ordered the plaintiff to bear most of the opposing legal costs. The report from the judge does not specify what type of smart glasses were involved.

What happened at the British High Court of Justice?

The incident is described in the judge's ruling.

The subject of the lawsuit was a dispute over who owned a company. When the plaintiff took the stand for cross-examination, the judge noticed that the man took an unusually long time before starting to answer questions. The defendant's lawyer eventually noticed that peculiar noises were coming from his vicinity. It turned out that the plaintiff was wearing smart glasses. After he removed them at the judge's instruction and answered a few questions, his smartphone suddenly audibly played the voice of a third person who was apparently speaking to him. The judge then had both the glasses and the smartphone secured.

The plaintiff later denied using the smart glasses during his testimony, claiming it was the chatbot ChatGPT speaking to him. To clarify further, the plaintiff's call log was photographed. According to this, he had repeatedly called a contact saved as "abra kadabra" on his smartphone during the morning and a few minutes before his testimony. The plaintiff explained that it had been his taxi driver, but could neither name him nor provide further details. A few days later, he also claimed that his smartphone and passport had been stolen, without being able to provide a police report.

The defendant's lawyer suspects that the plaintiff was being assisted live by his former foreign lawyer, who was officially allowed to participate in the hearing via a video link set up by the court. The judge herself stated in her ruling that the plaintiff had received help via his smart glasses without the court's knowledge. She dismissed the testimony and ruled in favor of the defendant.

In the USA, an incident with smart glasses in the courtroom also attracted attention. When Mark Zuckerberg appeared for a trial in February for a trial, some of his companions wore smart glasses. The judge asked the entourage to remove the smart glasses, threatening sanctions for contempt of court for further violations. The proceedings took place in a court in the US state of California, where recordings in the courtroom are only permitted with authorization. Meta is a manufacturer itself and currently the market leader in this rapidly growing wearables category. The company has sold nearly ten million devices since the end of 2023.

Old Laws Meet New Technology

Smart glasses like the Ray-Ban Meta glasses look like normal eyeglass frames from the outside. However, they can record images and videos and output audio without this always being immediately recognizable to those around. An LED signals to outsiders when filming is taking place, but it is barely perceptible in bright daylight. Many people do not even know that such technology exists, as it is far from being a matter of course in Germany. Consequently, a broader public debate about smart glasses in the context of data protection, privacy, and surveillance has so far been largely absent.

This development also raises new questions in courtrooms. Sensational incidents like those in Great Britain or the USA are not yet known from Germany. However, they cannot be ruled out.

Under German law (Section 176 GVG), the presiding judge is responsible for order in the session. Technical aids used, for example, in the context of witness testimony, must either be ordered by the court or at least be transparent. However, there is no explicit obligation for witnesses to disclose technical devices such as smart glasses in advance. In practice, compliance with these requirements is enforced through judicial orders, security checks, and house rules. A deception of the court cannot fundamentally be ruled out in this way, as in the British case. However, it can have criminal consequences, for example, for false, unsworn testimony, procedural fraud, or obstruction of justice.

Between Recording Ban and Control Gap

The mere wearing of smart glasses in the courtroom is also not explicitly regulated in Germany, but is heavily restricted in practice. There is no general ban on devices; the use is decisive. Under German law (Section 169 GVG), audio and video recordings during a hearing are inadmissible if they are to be published. At the same time, the presiding judge must ensure order in the courtroom. Thus, the presiding judge can prohibit the mere wearing or use of smart functions in individual cases if there is a suspicion that recordings are being made or communication connections are being used unnoticed. The unnoticed recording of persons by smart glasses can also constitute an inadmissible processing of personal data without a legal basis and in violation of the legally required information obligations for audiovisual recordings. It could also violate the general right of personality of the participants, which can result in civil claims for injunctions and damages.

Courts ensure order, as in the case described above, through security checks, house rules, and orders in the courtroom. However, the difficulty here also lies in the inconspicuousness of the devices: smart glasses are often hardly recognizable as such, and recordings cannot always be reliably detected. Furthermore, some wearers use the glasses with prescription lenses and may have limited vision without them.

The more inconspicuous the technology becomes, the easier it is to circumvent control. The case from Great Britain shows that existing rules do not necessarily prevent them from being circumvented. Similar scenarios are therefore at least conceivable in Germany. They could be prevented by greater awareness of the technology and by a ban or stricter controls in the courtroom.

(nen)