Recording a Phone Call in Germany: § 201 StGB, Your Phone, and Business Calls

A telephone call is one of the clearest cases under German recording law, and also one of the most frequently misunderstood. Recording a call without the agreement of everyone on the line is a criminal offence under § 201 StGB, punishable by imprisonment of up to three years or a fine.

Being a participant in the call changes nothing. There is no German equivalent of a one party consent rule, and the fact that the recording device belongs to the person recording, or that the call was made to their own number, is not part of the test.

This page covers the criminal rule as it applies to telephony, what the practical position on Android and iPhone devices does and does not mean legally, how voicemail differs, how lawful business call recording is structured, and what happens when a recorded call is later forwarded or produced in a dispute.

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

The criminal rule applied to telephony

§ 201 Abs. 1 Nr. 1 StGB punishes whoever, without authorisation, records the non-public spoken word of another person on a sound carrier. A telephone call is the textbook example. The parties are speaking to each other and to nobody else, the circle of listeners is limited and determinable, and the conversation is therefore non-public in the statutory sense.

The offence is complete when the recording is made. It does not depend on the content being sensitive, on the recording being kept, or on anyone else hearing it. § 201 Abs. 4 StGB also makes the attempt punishable, so a recording that fails technically is not automatically outside the provision.

§ 201 Abs. 1 Nr. 2 StGB adds a second offence for using such a recording or making it available to a third party. Sending the audio file to a lawyer, a colleague or a family member is an act under that limb, carried out by whoever forwards it, including someone who did not make the original recording.

§ 201 Abs. 2 Nr. 2 StGB covers publishing the wording or the essential content. That limb is only punishable where the public communication is capable of impairing the legitimate interests of another, and it is not unlawful where the communication serves overriding public interests. Posting a recorded call online is exactly the situation that provision is written for.

Where the recorder is an Amtsträger or a person specially obliged to public service, § 201 Abs. 3 StGB raises the maximum to five years or a fine. § 201 Abs. 5 StGB allows the sound carriers and listening devices used to be confiscated.

Consent has to come from both sides

The operative word in § 201 Abs. 1 StGB is unbefugt, without authorisation. A recording made with the agreement of everyone taking part in the call is not made without authorisation, and no offence arises.

That agreement has to be genuine and it has to come before the recording, not after. Announcing the recording at the start of the call and continuing after the other side audibly agrees is the practical way to document it, because the confirmation ends up on the recording itself.

Silence is a weak foundation. A person who is told at the start of a call that it is being recorded, and who simply keeps talking, has not clearly agreed to anything, particularly where hanging up was the only alternative. A short, explicit question and a spoken yes is a materially stronger position than an announcement nobody responded to.

Agreement can also be limited in scope. Consent to record a technical support call does not carry over to a private conversation that continues after the support issue is resolved, and a recorder that keeps running past the agreed subject can fall back inside § 201 StGB for that part.

What the phone can do is not the legal test

A great deal of confusion comes from the fact that call recording availability differs between manufacturers, operating system versions and regions. Some devices include a recording function, some do not, some regional builds behave differently from others, and third party apps come and go from the app stores.

None of that is the law. Whether a handset offers a recording button is a product decision, and it neither creates nor removes criminal liability under § 201 StGB. A recording made with a feature that shipped on the device is exactly as unlawful as one made with a separate voice recorder held next to the earpiece, if the other party did not agree.

The inverse is equally true. The absence of a built in function is not a legal prohibition either, and it does not mean that a recording made some other way is lawful because the phone made it difficult. The test is § 201 StGB, and it is the same test regardless of the hardware.

One feature does matter practically rather than legally. Where an implementation plays an audible announcement to all parties when recording starts, everyone on the call learns of it at the moment it begins, which puts the other side in a position to object or to end the call. That is useful evidence of what was disclosed, but it still does not replace agreement. Being told is not the same as agreeing.

A worked example

A consumer calls a service provider to complain about an incorrect invoice. Expecting to be given a promise that will later be denied, the consumer starts a recording on their own phone and says nothing about it. The agent on the other end never learns that the call is being recorded.

The call is non-public, the agent did not agree, and the recording was made without authorisation. The offence under § 201 Abs. 1 Nr. 1 StGB is complete, notwithstanding that the consumer is a party to the call and notwithstanding that the recording was made on the consumer's own device.

If the same consumer instead opens with a request to record the call, and the agent says yes, the recording is authorised and no offence arises. If the provider's own system announces that the call is being recorded and the consumer records as well without disclosing it, the provider's announcement covers the provider's recording, not the consumer's.

Voicemail and answering machines

A message left on a voicemail service sits differently. The caller is speaking into a system whose known and obvious function is to capture and store what is said, so the caller can be taken to understand that the message is being recorded. The storage of a message deliberately left on an answering service is not the same factual picture as the covert recording of a live conversation.

That reasoning has limits, and they matter. It covers the message itself, not a live conversation that begins if the person picks up while the caller is speaking. It also does not license passing the message on: § 201 Abs. 1 Nr. 2 StGB and § 201 Abs. 2 Nr. 2 StGB still govern what happens to the audio afterwards, and forwarding or publishing a voicemail can create exposure even where storing it did not.

A related point applies to the outgoing side. A person who records incoming calls automatically, using an answering function that engages after the caller has been told, is in a very different position from one whose system records the live conversation silently once the call is picked up.

Business call recording done properly

Companies do record calls lawfully in Germany, and the structure they use is instructive. Two separate bodies of law apply at once. § 201 StGB governs the criminal side and is satisfied by the agreement of the participants. Data protection law governs the processing of the resulting personal data and needs its own legal basis, in practice a consent that is informed and freely given.

The Bundesbeauftragte für den Datenschutz und die Informationsfreiheit describes the requirement plainly for contracts concluded by telephone: the provider has to inform the customer of the purpose and the duration of the call recording before the customer consents to it. Purpose and retention period are therefore not optional extras in the announcement, they are part of what makes the consent valid. The data protection supervisory authorities also addressed the recording of telephone calls in a dedicated decision of the Datenschutzkonferenz of 23 March 2018.

That produces a recognisable compliant pattern. An announcement before the recording starts, not after. A statement of why the call is being recorded and how long the recording will be kept. A real alternative for a caller who does not want to be recorded, whether that is continuing without recording or another channel. And a recording that stops when the stated purpose ends.

What does not work is an announcement that leaves the caller no choice but to be recorded in order to receive the service at all, an announcement made after the recording has already begun, or a blanket recording of all calls with no stated purpose or retention limit. Quality assurance is a real purpose, but it has to be stated rather than assumed.

Recording inside the workplace adds a further layer, because employee data processing and works council participation rights come into play alongside § 201 StGB. Covert recording by an employee of a conversation with a manager or a colleague has repeatedly been treated in German employment practice as a serious breach capable of justifying dismissal, and the fact that the employee wanted evidence does not neutralise that.

Professional secrecy and telecommunications secrecy

Two neighbouring rules are often mentioned in the same breath and are worth separating.

§ 203 StGB punishes the unauthorised disclosure of another person's secret by members of listed professions, including doctors, lawyers, notaries and tax advisers, with up to one year imprisonment or a fine in the base case under § 203 Abs. 1 StGB. A recorded call with such a professional can therefore engage a second provision entirely if the recording is passed on, quite apart from § 201 StGB.

Art. 10 Abs. 1 GG declares the secrecy of correspondence, post and telecommunications inviolable, and restrictions may be ordered only on the basis of a statute under Art. 10 Abs. 2 GG. That guarantee is directed at the state and at the interception of telecommunications by public authority, and it is not the provision that governs one private caller recording another. For the private situation the operative rule remains § 201 StGB.

Prosecution: an application within three months

§ 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. Without a Strafantrag from the person whose word was recorded, there is normally no prosecution at all.

It is worth being precise here because it is often reported incorrectly. The ex officio override in the second sentence of § 205 Abs. 1 StGB, which lets the prosecution authority act on its own initiative where there is a special public interest, is written for §§ 201a, 202a, 202b and 202d. It does not extend to § 201.

§ 77b Abs. 1 StGB sets the deadline at three months, and under § 77b Abs. 2 StGB the period begins at the end of the day on which the entitled person learns of both the act and the identity of the offender. Someone who only discovers a recorded call much later can still be within time.

Missing that deadline does not make the recording lawful. It ends the realistic criminal route while leaving the civil claims and the evidence question untouched.

When the recording already exists

A recorded call that was made unlawfully still creates civil exposure. The general personality right derived from Art. 2 Abs. 1 in conjunction with Art. 1 Abs. 1 GG is treated as a sonstiges Recht within § 823 Abs. 1 BGB, and § 823 Abs. 2 BGB adds a claim for breach of a protective statute, which is what § 201 StGB is. § 1004 BGB, applied by analogy, supports claims for deletion and for an injunction against repetition.

Whether the recording can be produced in court is a genuinely separate question, and it is the one most people are actually asking. It is decided by a Güter- und Interessenabwägung between the personality right of the person recorded and the opposing interest in effective legal protection.

That balancing can admit a recording that was unlawfully made. In its decision of 15 May 2018, VI ZR 233/17, the Bundesgerichtshof held that a dashcam recording breached the data protection law applicable at the time and was nevertheless usable as evidence in the civil accident liability proceedings. The route to that result was the balancing exercise, not the criminal justification in § 34 StGB.

§ 34 StGB, rechtfertigender Notstand, is a narrow answer to a different question. It requires a present danger that cannot be averted otherwise and a protected interest that substantially outweighs the impaired one, and it is applied restrictively. Recording a call because the other side might later deny what was said is generally not enough to meet it.

The full treatment of the evidence question, including where the balance tends to land and how the criminal and civil settings differ, is on secret recordings as evidence. For the general rule as it applies to face to face conversations, see recording conversations. The section overview is at German recording law, and broader background on German law is at German law explained.

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