Whether a privately recorded video may be used for evidentiary purposes in a civil lawsuit depends on a balancing of interests. Its use may be admissible if no specific purpose was pursued at the time of recording and the video later serves to secure evidence.
On May 30, 2011, a traffic accident occurred in Munich at the intersection of Tegelbergstrasse and 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 sought reimbursement from the car driver for medical and repair costs totaling 3000 Euros, as well as appropriate compensation for pain and suffering. He claimed that the driver had intentionally cut him off to reprimand him. The convertible driver had previously shown him the “middle finger” because the cyclist had complained that the Smart had overtaken him earlier without any lateral distance. He stated he could prove all of this because he had recorded his bicycle ride on video.
The car driver refused to pay. He asserted that none of the claims were true and that the use of the video violated his fundamental rights.
Subsequently, the cyclist filed a lawsuit with the Munich Local Court. However, the presiding judge dismissed the claim:
The evidentiary proceedings revealed that the cyclist was predominantly at fault for the accident. The car driver's contributory conduct was of such subordinate importance that liability could no longer be considered.
There was no contact between the bicycle and the Smart. Therefore, the car driver was not automatically liable for the consequences of the accident merely due to the inherent operational risk posed by his vehicle. Rather, the cyclist had to prove fault on the part of the car driver, which he failed to do.
Initially, it was disputed whether the use of the video was admissible. To answer this question, the interests of both parties had to be balanced against each other.
In this case, the balancing of interests led to the conclusion that the use of the video was admissible.
At the time the video was recorded, the recording party had not pursued any specific purpose with it. The individuals captured in the video were purely incidentally in the frame, similar to taking holiday photos or making holiday films where individuals with whom one has no connection are also depicted. Such photographic and video recordings are not prohibited and are socially accepted. Everyone knows that they can incidentally appear in such images in public. Since the depicted person is generally unknown to the photographer, and the photographer therefore has no specific intentions towards the depicted person, the depicted person remains anonymous and is thus not affected in their rights merely by the fact that the recording was made. An infringement of their fundamental rights could only occur if such an incidentally obtained recording were published against the will of the depicted person.
This situation is indeed present here, as the plaintiff intends to use the video recording in judicial proceedings. However, at the moment the accident occurred, the interests of the parties involved also changed. The cyclist now had an interest in securing evidence. This interest is also recognized in jurisprudence: it is considered unproblematic if a party involved in an accident immediately after the accident takes photos of the vehicles involved, their final positions, brake marks, or even of their accident opponent, to secure evidence for the course of the accident and the involvement of the persons. It should make no difference whether the evidence is obtained only after the accident or whether already existing recordings are now utilized with this objective. Therefore, the video could be evaluated in the trial.
However, the video analysis has now revealed that the cyclist was traveling at a speed of 24 km/h and therefore should have maintained a distance of 12 meters from the preceding car. He failed to do so, instead riding at a distance of only 8 meters behind the car. Even upon seeing the brake lights illuminate, he could still have brought his bicycle to a safe stop if he had performed moderate braking using not only the front wheel rim but also the rear wheel rim to maintain the stability of his bicycle. The remaining distance to the car's stop would have been sufficient for this.
The car driver also had a traffic-related reason for braking, as an oncoming vehicle approached him.
The plaintiff must prove that the car driver intended to admonish him. The video does not show this, particularly not a raised middle finger. The corresponding image sequence merely shows a raised fist. Whether a finger protrudes beyond it, however, cannot be stated with the necessary certainty. The car driver stated that he occasionally rests his hand on the upper door frame when driving his convertible. Based on what is visible in the video, this explanation cannot be entirely 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 Munich District Court
Goldberg Attorneys at Law 2013
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email:info@goldberg.de
