The ban on filming police operations is an international exception

The practice of the German police to prohibit recordings of police operations with reference to the Penal Code is rather exceptional in international comparison. This is the conclusion of a report by the Scientific Services of the Bundestag, which looked at 16 countries, among them Great Britain and Israel as well as numerous EU states. According to the report, only in Portugal and Switzerland is there a possibility of banning recordings of the “spoken word” if, as in Germany, this is directed at the person recording.

There is now legal uncertainty in Germany on the question of documenting police measures. Years ago, bystanders were asked to refrain from making recordings with reference to the Art Copyright Act, although this only aims at the later publication of the images. In 2015, however, the Federal Constitutional Court had ruled that the police cannot justify their measures with the mere possibility of future criminal liability.

Since then, the police often prohibit filming under section 201 of the Penal Code. It actually refers to the interception of confidential communications and protects the confidentiality of the non-public word spoken by other persons. Thus, this “Wiretapping Paragraph” does not refer to the creation of videos, but cameras on mobile phones usually do not have the possibility to switch off the audio track.

In a separate paragraph, section 201a of the Penal Code also makes video recordings a punishable offence, but only if this is done in their private home without their consent or if persons are displayed in their helplessness. Bans on audio recordings, however, are also imposed by the police in public spaces.

In Berlin, the alliance “Go Film The Police” consisting of 14 groups and organisations has been founded against the arbitrary application of the “Wiretapping Paragraph”. One of the initiators is the Campaign for Victims of Racist Police Violence (KOP), which deplores the rampant ban on documenting such incidents. Police actions in public space cannot be understood as “non-public”, the alliance states in an open letter. “Therefore, we criticise the misuse of this paragraph as a clear attempt to criminalise a critical public and witness.”

Some of the imposed restrictions have already been heard by the local and regional courts. The main question was when a police operation is to be understood as “non-public”, although it takes place in public. In the courts, the concept of “de facto public” has become established. Words spoken by police officers, which can be heard at any time by any other person, therefore do not fall under the penal provision. The situation is different for conversations in police vehicles or in inanimate places.

In the meantime, two Higher Regional Courts have also dealt with the application of the “Wiretapping Paragraph”, but have ruled differently. According to a decision of the Higher Regional Court of Zweibrücken, the filming of a police operation, which was directed against a limited number of people, was illegal. The Düsseldorf Higher Regional Court, on the other hand, emphasised that the police must always expect that their words will come to the knowledge of the public, even if they are only directed at a limited circle. Both courts refrain from making fundamental clarifying statements on the legal question. This would have to be done by the Federal Supreme Court.

As in Germany, the subsequent publication of audiovisual recordings is also illegal in many other countries. According to the Bundestag report, such offences exist in Finland, Austria and Sweden. In Norway, on the other hand, publication can be permissible if it is for “purposes of public control of police actions”, according to the report.

Such a loophole is also left by the German paragraph 201 on the “violation of the confidentiality of the word”. According to this, the publication of the recordings is not unlawful “if the public communication is made to safeguard overriding public interests”. However, whether the documentation of an unlawful police action constitutes such a public interest is in practice often subject to the arbitrariness of the police officers deployed.

Published in German in „nd“.

Image: Police in Berlin (Matthias Monroy).