The Mannheim Regional Court sentenced the operator of a detective agency and one of his employees to total terms of imprisonment of varying amounts for several cases of intentional unauthorised collection of data in return for payment, the execution of which it suspended in each case.
The accused had covertly carried out surveillance missions for various clients (private persons), which were to lead to knowledge about the professional and/or private life of persons (target persons). The motives of the clients were different in detail: mainly economic and private interests were involved, which sometimes overlapped, for example in connection with marital disputes.
In order to fulfil their mission, the accused made extensive use of GPS technology (Global Positioning System) by attaching a GPS receiver to the target's vehicles without being noticed. This enabled them to determine when and where the respective vehicle was. In this way, they created movement profiles of the targets.
Based on these findings, the Regional Court convicted the defendants of a number of criminal violations of the Federal Data Protection Act (§§ 44 in conjunction with 43 para. 2 no. 1 BDSG). In the opinion of the Regional Court, the defendants were not authorised to use the GPS receivers in the sense of section 28, paragraph 1, no. 2 BDSG or section 29, paragraph 1, no. 1 BDSG. It did not differentiate between the individual cases.
In their appeals, the defendants objected, among other things, to the district court's legal assessment that the defendants' collection of data was unauthorised. The district court had not carried out the necessary weighing of the conflicting interests in each individual case.
The 1st Criminal Senate of the Federal Supreme Court has ruled that the secret surveillance of "target persons" by means of a GPS receiver is in principle punishable. It is true that a balancing of the conflicting interests is necessary in individual cases. However, only if there is a strong legitimate interest in this data collection, the weighing can exceptionally (for example in self-defence-like situations) show that the characteristic of unauthorised action is to be negated in these uses of GPS receivers.
Whether such exceptions existed in some cases could not be conclusively reviewed, as the Regional Court, which had assumed a different legal standard, had not made sufficient findings in this regard. This led to a reversal and referral back to another criminal division of the Regional Court for part of the accused cases.
However, insofar as the assumption of such a legitimate interest was excluded from the outset according to the findings of the verdict, the sentences of guilt and individual penalties were upheld.
Judgment of the Federal Supreme Court of 4 June 2013 - 1 StR 32/13
Lower court:
LG Mannheim - Judgment of 18 October 2012 - 4 KLs 408 Js 27973/08
Source: Press release of the BGH
Goldberg Attorneys at Law 2013
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
