Is It a Crime to Record a Conversation in Germany? § 201 StGB Explained

Pressing record during a difficult conversation feels like a sensible precaution. In Germany it is, in the ordinary case, a criminal offence. § 201 StGB protects the confidentiality of the spoken word, and it does so with a criminal penalty rather than a mere fine or a data protection warning.

The rule catches far more everyday situations than most people expect. It applies to a phone call, a meeting in an office, an argument in a stairwell and a conversation at a restaurant table, and it applies whether the recording is made on a dedicated device or on the phone already sitting on the table.

This page works through what § 201 StGB actually prohibits, what the key term nichtöffentlich gesprochenes Wort means in practice, when consent removes the problem, what the penalties are, why the offence normally only gets prosecuted on a formal complaint, and where the civil exposure sits even in the cases where no crime is made out.

Information last verified on 20 July 2026. This page provides general legal information and does not constitute legal advice in an individual case.

What § 201 StGB actually prohibits

§ 201 Abs. 1 Nr. 1 StGB punishes whoever, without authorisation, records the non-public spoken word of another person on a sound carrier. The penalty is imprisonment of up to three years or a fine. There is no threshold of seriousness written into the provision: the offence is complete once the recording exists, whether or not anyone ever listens to it, and whether or not the content turns out to be interesting.

§ 201 Abs. 1 Nr. 2 StGB then punishes, with the same penalty range, whoever uses a recording produced that way or makes it available to a third party. This second limb catches people who did not make the recording at all. Forwarding a voice message that was itself an unlawful recording, or playing it to a colleague, can be an offence in its own right.

§ 201 Abs. 2 StGB covers two further situations. Nr. 1 is listening in on the non-public spoken word of another with an Abhörgerät, a listening device, where the words were not intended for the listener. Nr. 2 is publicly communicating the wording or the essential content of a word captured under Abs. 1 Nr. 1 or Abs. 2 Nr. 1.

That publication limb has two qualifications built into the statute itself. It is only punishable where the public communication is capable of impairing the legitimate interests of another, and it is not unlawful where the communication is made in the pursuit of overriding public interests. That second sentence is the statutory hook that journalism arguments are built on.

§ 201 Abs. 3 StGB raises the maximum penalty to five years or a fine where the person breaching the confidentiality of the word is an Amtsträger or a person specially obliged to public service. § 201 Abs. 4 StGB makes the attempt punishable, which matters because a failed or empty recording is not automatically outside the provision. § 201 Abs. 5 StGB allows the sound carriers and listening devices used to be confiscated.

Nichtöffentlich gesprochenes Wort: the term everything turns on

The single most common misunderstanding is that nichtöffentlich means quiet, private or confidential in the everyday sense. It does not. The question is whether the spoken word was addressed to a limited, determinable circle of listeners rather than to a general public that is not individually identifiable.

That has a counterintuitive consequence. A couple arguing loudly at a restaurant table, where the neighbouring tables can hear every word, are still speaking non-publicly, because the words are addressed to each other and not to the room. The fact that the conversation could be overheard does not turn it into a public one, and a diner at the next table who starts recording is squarely within § 201 Abs. 1 Nr. 1 StGB.

The reverse is also true. A speaker addressing an open public meeting, a politician at a rally, or a lecturer in a session anyone may walk into, is speaking publicly, and a recording of that speech is not caught by § 201 at all. A closed staff meeting, a seminar restricted to enrolled participants, or a shareholder meeting is different again, because the circle of listeners there is limited and determinable.

Two practical markers help. First, ask who the words were directed at, not who could physically hear them. Second, ask whether anyone at all could have joined the audience without permission. If the answer to the second question is no, the conversation is very likely non-public.

A worked example

A tenant meets a landlord in the entrance hall of an apartment building to discuss a rent increase. Two neighbours pass through during the conversation and clearly hear part of it. The tenant, expecting trouble later, starts a voice recording on a phone in a jacket pocket without saying so.

The conversation is non-public: it was addressed to the landlord, not to the building. The recording is made without authorisation, because the landlord neither knew nor agreed. The offence under § 201 Abs. 1 Nr. 1 StGB is complete at that moment, regardless of how reasonable the tenant's motive was and regardless of what the landlord went on to say.

If the tenant then sends the file to a friend for a second opinion, that is a further act under § 201 Abs. 1 Nr. 2 StGB. If the tenant posts it publicly and the content is capable of harming the landlord's legitimate interests, § 201 Abs. 2 Nr. 2 StGB comes into play as well.

Consent from everyone in the conversation

The word unbefugt in § 201 Abs. 1 StGB is what carries the consent analysis. A recording made with the agreement of every participant in the conversation is not made without authorisation, and no offence under § 201 arises.

The requirement is agreement from all of them, not from one. Being a participant in the conversation does not create a right to record the others. This is the point where readers coming from a one party consent jurisdiction most often get German law wrong: participation gives no recording privilege at all under § 201.

Consent has to be given before or at the time of the recording and has to relate to what is actually being recorded. Telling the other side that the call is being recorded and continuing after they audibly agree is a practical way of documenting it. A consent buried in small print, or an announcement nobody could realistically object to without ending the conversation, is a weaker foundation than a clear spoken confirmation on the recording itself.

Consent can also be limited. Agreement to record a technical briefing does not extend to the private conversation that continues after the briefing ends, and a recording that keeps running past the agreed scope can fall back into § 201 for the part that was not covered.

Antragsdelikt: the complaint and the three month window

§ 205 Abs. 1 Satz 1 StGB provides that in the cases of § 201 Abs. 1 and Abs. 2, the offence is prosecuted only on application. That makes § 201 an Antragsdelikt: without a Strafantrag from the person whose word was recorded, there is normally no prosecution, however clear the facts are.

It is worth being precise about this, because it is widely misstated. The second sentence of § 205 Abs. 1 StGB contains an override allowing the prosecution authority to act of its own motion because of a special public interest, but that override is written for §§ 201a, 202a, 202b and 202d. It does not extend to § 201 itself.

§ 77b Abs. 1 StGB then sets the deadline. The application has to be made within three months, and under § 77b Abs. 2 StGB that period starts at the end of the day on which the entitled person learns of both the act and the identity of the offender. A person who discovers a recording two years after it was made can still be within time if they only learned of it that week.

The practical consequence runs both ways. Someone recorded without consent who wants a criminal consequence has to act within a fairly short window once they know. Someone who made a recording should not treat the passing of the deadline as making the recording lawful: the act remains unlawful, and the civil and evidential consequences described below are not governed by § 77b at all.

§ 34 StGB Notstand is narrower than it sounds

The argument that a secret recording was justified by necessity is made constantly and succeeds rarely. § 34 StGB provides that a person who commits an act in order to avert a present danger to life, limb, freedom, honour, property or another legal interest, which cannot be averted otherwise, does not act unlawfully, provided that on weighing the conflicting interests the protected interest substantially outweighs the impaired one, and provided the act is an appropriate means of averting the danger.

Read the conditions closely. The danger has to be present, not anticipated. It has to be one that cannot be averted in another way, which is a real hurdle when a witness, a written note or a formal warning letter would also have worked. The protected interest has to substantially outweigh the interest in the confidentiality of the word, not merely match it.

That is why recording a conversation because a dispute might one day arise, or in order to have proof for a possible later claim, is generally outside § 34 StGB. Courts apply the provision restrictively in this area precisely because a general evidence gathering justification would empty § 201 of content. A genuine ongoing extortion or serious threat is a different factual picture from a difficult negotiation, but even there § 34 is assessed on the specific facts and not assumed.

Criminal liability and admissibility are two different questions

This is the distinction that almost every consumer explanation of German recording law blurs, so it is worth stating flatly. Whether making a recording was a crime under § 201 StGB, and whether a court will let the recording be used as evidence, are decided by different tests and can come out differently.

The criminal question is answered inside § 201 StGB, with § 34 StGB as a narrow potential justification. The evidence question is answered by a Güter- und Interessenabwägung, a balancing of the general personality right derived from Art. 2 Abs. 1 in conjunction with Art. 1 Abs. 1 GG against the opposing party's interest in effective legal protection and a functioning administration of justice.

The Bundesgerichtshof made the split visible in its dashcam decision of 15 May 2018, VI ZR 233/17. The recording there breached the data protection law applicable at the time, and it was nevertheless admissible in the civil accident liability proceedings. The court reached that result through the balancing exercise, not through § 34 StGB, which it did not need to invoke.

So a recording can be a criminal offence and still be admitted, and a lawfully made recording can still be excluded where the balancing comes out the other way. The full analysis, including where the balance usually lands and what the criminal side looks like, is set out on secret recordings as evidence.

The civil side, even where no crime is made out

A recording that escapes § 201 StGB, because the conversation was public or because everyone consented to part of it, can still create civil exposure. The general personality right protected under Art. 2 Abs. 1 in conjunction with Art. 1 Abs. 1 GG is recognised as a sonstiges Recht within § 823 Abs. 1 BGB, which gives rise to a damages claim where it is unlawfully and culpably infringed.

§ 823 Abs. 2 BGB adds a second route. A person who breaches a statute intended to protect another is liable in the same way, and § 201 StGB is exactly that kind of protective statute, so a criminal breach can carry a parallel civil damages claim without needing any prosecution to have happened.

Alongside damages, § 1004 BGB, applied by analogy to personality rights, supports claims for removal and for an injunction restraining repetition. In practice that is often what the affected person actually wants: deletion of the file, an undertaking not to distribute it, and an assurance that it will not be published.

The timelines here are independent of the three month Strafantrag deadline. Missing the criminal window does not extinguish the civil claims, which follow the ordinary civil limitation rules instead.

Neighbouring provisions worth knowing

§ 201 StGB covers the spoken word only. Images are governed by § 201a StGB, which protects the höchstpersönlicher Lebensbereich against picture recordings, with a maximum of two years or a fine in the cases in § 201a Abs. 1 StGB. A video that captures both picture and sound can engage both provisions at once, which is why filming a private conversation is not a way around § 201.

§ 203 StGB is a different mechanism again. It punishes the disclosure of another person's secret by members of specified professions, including doctors, lawyers, notaries, tax advisers and certain counsellors, with up to one year or a fine in the base case under § 203 Abs. 1 StGB. It is about betraying confidences acquired professionally rather than about recording, but it frequently sits in the background of the same factual situations.

Workplace and journalism, at pointer level

Recording at work adds layers rather than removing them. § 201 StGB applies to a conversation between colleagues exactly as it applies anywhere else, and on top of that sit data protection duties, works council participation rights and the employment law consequences of a covert recording, which have repeatedly been treated as capable of justifying dismissal. None of that is displaced by an argument that the employee needed evidence.

Journalistic recording works through a specific statutory route rather than a general press privilege. The relevant hook is the final sentence of § 201 Abs. 2 StGB, under which a public communication made in the pursuit of overriding public interests is not unlawful. That exemption is written for the publication limb, and it is a high standard rather than a general licence to record sources covertly.

Both areas are treated in their own right elsewhere in this section. Start from the German recording law overview for the map, and see recording phone calls for the telephone specific position, including business call recording. Broader background on German law for people living in Germany is at German law explained.

What this means in practice

The honest summary is that Germany treats the spoken word as something close to inviolable, and that the intuition many people bring from other legal systems, that being part of a conversation carries a right to record it, is simply not the German position.

The safe route is the boring one: ask, get an audible yes, and keep the confirmation on the recording. Where that is impossible, the alternatives are contemporaneous written notes, a witness, or a formal written exchange that creates its own record, none of which touch § 201 StGB.

And where a recording already exists, the two questions have to be kept apart. What criminal exposure it created is one analysis. Whether a court would let it be used is another, decided on a different test and on the specific facts.

Frequently asked questions