Whether a privately recorded video may be used as evidence in civil proceedings depends on a balancing of interests. The use may be permissible if at the time of the recording no specific purpose was pursued with it and the video later serves to preserve evidence.
On 30.5.11, a traffic accident occurred in Munich at the junction of Tegelbergstraße/ Naupliastraße. A cyclist was riding to the right of the driver of a Smart convertible, who then overtook him. When the car driver suddenly braked, the cyclist stumbled and fell. He was injured and his bicycle was also damaged.
The cyclist wanted to be reimbursed for the medical and repair costs totalling 3,000 euros by the car driver, as well as appropriate compensation for pain and suffering. After all, the driver had deliberately slowed him down in order to reprimand him. The driver of the convertible had already given him the middle finger because he had complained that the Smart had overtaken him without any distance to the side. He could also prove all this because he had recorded his bicycle ride on video.
The driver refused to pay. It was all wrong and the exploitation of the video violated his fundamental rights.
The cyclist then brought an action before the Munich District Court. However, the competent judge dismissed the complaint:
The taking of evidence had shown that the cyclist was predominantly responsible for the accident. The contributory behaviour of the car driver was of such minor importance that liability could no longer be considered.
The bicycle did not come into contact with the Smart car. Therefore, the car driver was not automatically liable for the consequences of the accident because of the operational risk emanating from his car. The cyclist had to prove that the car driver was at fault. He had not succeeded in doing so.
First, it was disputed whether the exploitation of the video was permissible. The answer to this question depended on the interests of both parties, which had to be weighed against each other.
Here, the balancing of interests led to the result that the exploitation of the video was permissible.
At the time the video was recorded, the person recording it had not yet pursued a specific purpose. The persons recorded on the video had entered the picture purely by chance, as was the case when people took holiday photos or made holiday films and people with whom they had nothing to do were also depicted. Such photos and videos are not forbidden and are socially accepted. Everyone knew that they could accidentally come across such pictures in public. Since the person depicted was usually not known to the photographer and the photographer did not pursue any further intentions towards the person depicted, the person depicted remained anonymous and was not affected in his or her rights by the mere fact that the picture was taken. An impairment of their fundamental rights could only exist if such a photograph, taken by chance, was published against the will of the person depicted.
This was the case here, as the plaintiff wanted to make use of the video recording in the court proceedings. However, at the moment when the accident occurred, the interests of the parties involved had changed. The cyclist now had an interest in preserving evidence. This interest was also recognised in case law: It was considered unproblematic if a person involved in an accident took photos of the vehicles involved, the final position, skid marks or also of his opponent immediately after the accident in order to secure evidence of the course of the accident and the involvement of the persons. It could make no difference whether the evidence was only obtained after the accident or whether recordings that had already been made were now exploited with this aim in mind. Therefore, the video could be evaluated in the trial.
However, the evaluation of the video had now shown that the cyclist had been travelling at a speed of 24 km/h and therefore should have kept a distance of 12 m from the car in front. However, he had not done so; he had ridden at a distance of only 8 m behind the car. When he saw the brake lights come on, he could still have brought his bicycle to a safe stop if he had applied moderate braking not only with the front wheel rim but also with the rear wheel rim in order to maintain the stability of his bicycle. The remaining distance until the car stopped would have been sufficient for this.
The car driver had also had a traffic-related reason for his braking, as a passenger car had been coming towards him.
The plaintiff had to prove that the driver wanted to reprimand him. The video did not show this, in particular the raised middle finger. Only a raised fist could be seen in the corresponding sequence of images. It was not possible to say with the necessary certainty whether a finger extended beyond this. The driver had stated that he occasionally had his hand on the upper door pillar when driving his convertible. On the basis of what could be seen on the video, this variant could not be completely ruled out.
The judgment is not final (as of 09.07.2013).
Judgment of Munich Local Court of 6.6.13, AZ 343 C 4445/13
Source: Press release of the AG Munich
Goldberg Attorneys at Law 2013
Specialist lawyer for information technology law