Violation of the confidentiality of the word
The violation of the confidentiality of the word is in Germany according to § 201 para. 1 and para. 2 of the Criminal Code , a crime which with imprisonment is punishable up to three years or a fine. If the perpetrator is a public official ( Section 11 (1) No. 2 StGB), in particular a civil servant or judge, the range of punishment increases according to Section 201 (3) of the Criminal Code for imprisonment of up to five years
Only the basic offense of § 201 Paragraph 1 and 2 StGB is an application offense ( § 205 StGB), the qualification according to Section 201 (3) of the Criminal Code does not.
Offense
Section 201 of the Criminal Code is one of the penal provisions that protect personal life and confidentiality .
The communication sphere and the impartiality of personal statements are protected. Acts of crime are unauthorized recording and eavesdropping , making the recording accessible and public disclosure of content.
An interference with the rights of employees protected by Section 201 of the Criminal Code can be justified by self-defense ( Section 32 of the Criminal Code) or an emergency ( Section 34 of the Criminal Code). A decision by the Berlin State Labor Court was based on a case in which cashiers suspected of misappropriating cash were secretly wiretapped. In this context, the regional labor court stated that the employer had no other option to obtain suitable evidence to convict the employee and therefore saw the interference as justified.
Jurisprudence
Guiding principles of various judgments
“The reproduction and utilization of telephone calls that were recorded by third parties is absolutely inadmissible if the content must be assigned to the core area of private life, the so-called intimate sphere. Parts of the conversation that do not belong to the core area of the private sphere can be exploited if the interests of the general public outweigh the interests of the interlocutors, which are protected by fundamental rights, so that exploitation of the tape recordings is to be regarded as permissible. "
" Immoral within the meaning of § 826 BGB is not only someone who knows the circumstances giving rise to liability positively, but also an accomplice who deliberately refuses to have such knowledge."
“Secretly eavesdropping on telephone conversations between employees and employers is generally prohibited. It violates the interlocutor's personal rights. Evidence obtained in this way may not be used. Anyone who wants to let someone overhear has to inform their interlocutor beforehand. He is not required to make sure that no one is listening. Art. 6 I European Convention on Human Rights does not require the hearing of the secretly eavesdropping witness. In any case, this applies if the party that let him overhear had no good reason to do so in secret. "
Periodical references: BAGE 87, 31; NJW 1998, 1331; MDR 1998, 421; BB 1998, 431; DB 1998, 371; NZA 1998, 307
“ A) In relation to the Article 2 Paragraph 1 in conjunction with Article 1 Paragraph 1 GG - u. a. - Protected right to the spoken word also includes the power to determine whether the communication content should only be accessible to the conversation partner, a certain group of people or the public. b) The protection of the right to the spoken word does not depend on whether the exchanged information is personal communication content or even particularly sensitive data, nor does it depend on the agreement of a special confidentiality of the conversation. c) The mere interest in securing evidence for claims under civil law is not sufficient to justify the violation of the personal rights of the other party to the proceedings. d) If the questioning of a witness about a telephone conversation overheard by him constitutes an interference with the general personality rights of a conversation partner, the use of the testimony as evidence in civil court proceedings is out of the question. "
literature
- Lorenz Erni: The violation of the confidentiality of the word as a criminal offense in German and Swiss criminal law . Rüegger, Diessenhofen 1981, ISBN 3-7253-0137-9 .
- Wolfgang Kattanek: The violation of the right to the spoken word by overhearing other people . LIT Verlag, Juristische Schriftenreihe, Volume 154, 2000, ISBN 3-8258-5230-X .
- to convict an editor according to § 201 StGB. In: taz , January 29, 2005
Web links
- Michael Giesecke: Legal aspects of § 201 StGB Uni Erfurt
- Christoph Abeln: The crime scene “company” . September 8, 2005
- Legal Committee of the Bundestag (PDF; 105 kB)
