The Regional Court Mannheim sentenced the operator of a detective agency and one of his employees to cumulative prison sentences of varying lengths, each suspended on probation, for multiple instances of joint intentional unauthorized data collection for remuneration.
The defendants had covertly executed surveillance assignments for various clients (private individuals), aiming to gather information about the professional and/or private lives of target individuals. The clients' motives varied, predominantly involving economic and private interests, which occasionally overlapped, such as in cases related to marital disputes.
To fulfill their assignments, the defendants extensively utilized GPS technology (Global Positioning System) by covertly attaching GPS receivers to the target individuals' vehicles. This allowed them to ascertain the location and movement times of each vehicle, thereby creating detailed movement profiles of the target persons.
Based on these findings, the Regional Court convicted the defendants for a series of punishable offenses against the Federal Data Protection Act (Sections 44 in conjunction with 43 para. 2 no. 1 BDSG). In the Regional Court's view, the defendants were not authorized to deploy GPS receivers under the provisions of Section 28 para. 1 no. 2 BDSG or Section 29 para. 1 no. 1 BDSG. The court did not differentiate between the individual cases.
In their appeals, the defendants challenged, inter alia, the Regional Court's legal assessment that their data collection was unauthorized. They argued that the Regional Court had failed to conduct the requisite case-by-case balancing of conflicting interests.
The 1st Criminal Senate of the Federal Court of Justice ruled that the covert surveillance of "target persons" using a GPS receiver is, in principle, a punishable offense. While a case-by-case balancing of conflicting interests is indeed necessary, only in instances where a strong legitimate interest in such data collection exists can this balancing exceptionally (e.g., in situations analogous to self-defense) lead to the negation of the unauthorized action element for these uses of GPS receivers.
It could not be conclusively determined whether such exceptions applied in certain cases, as the Regional Court, having operated under a different legal standard, had failed to make sufficient findings on this matter. This resulted in the reversal and remand of a portion of the charged cases to a different criminal chamber of the Regional Court.
Conversely, where the judgment's findings definitively precluded the existence of such a legitimate interest from the outset, the convictions and individual sentences were upheld.
Judgment of the Federal Court of Justice of June 4, 2013 – 1 StR 32/13
Previous Instance:
Regional Court Mannheim – Judgment of October 18, 2012 – 4 KLs 408 Js 27973/08
Source: Press release of the Federal Court of Justice
Goldberg Attorneys at Law 2013
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
