Can a Secret Recording Be Used as Evidence in a German Court?

There are two questions about a secret recording in Germany, and almost every consumer explanation runs them together. The first is whether making the recording was a criminal offence. The second is whether a court will let the recording be used as evidence.

They are decided by different tests, in different bodies of law, and they can come out differently. A recording can be a criminal offence under § 201 StGB and still be admitted. A recording that broke no criminal rule at all can still be excluded.

This page is about the second question. It sets out the balancing exercise German courts actually apply, what the Bundesgerichtshof settled in its dashcam decision of 15 May 2018, why § 34 StGB is the wrong tool for this question, and how the analysis differs between civil, criminal and employment proceedings.

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

Two questions, two tests

The criminal question is answered inside § 201 StGB. Recording the non-public spoken word of another person without authorisation is punishable by imprisonment of up to three years or a fine under § 201 Abs. 1 Nr. 1 StGB. The only realistic escape routes are consent from every participant, which removes the unbefugt element, or a justification such as § 34 StGB, which is rarely available.

The evidence question is answered somewhere else entirely. It is a question of procedural and constitutional law, decided by weighing the personality right of the person recorded against the interest of the party relying on the recording in effective legal protection and a functioning administration of justice.

Because the tests are different, the outcomes are independent. Criminal liability is not a conclusive argument for exclusion, and admissibility is not a finding that the recording was lawfully made. Keeping the two apart is the single most useful thing to understand about this area.

The starting point in civil proceedings

German civil procedure does not contain a general exclusionary rule for evidence that was obtained unlawfully. § 286 Abs. 1 ZPO directs the court to decide according to its free conviction, taking into account the entire content of the proceedings and the result of any taking of evidence, whether a factual assertion is to be regarded as true or untrue, and to state in the judgment the reasons that guided that conviction. § 286 Abs. 2 ZPO adds that the court is bound by statutory rules of evidence only in the cases this statute designates.

A sound or video recording is normally introduced as Beweis durch Augenschein under § 371 ZPO. § 371 Abs. 1 Satz 2 ZPO deals expressly with an electronic document as the object of the evidence, offered by producing or transmitting the file.

So the default is not exclusion. A recording is a piece of evidence like any other unless something in the constitutional balancing requires the court to disregard it. That is why an unlawfully made recording does not simply disappear from a case the moment its origin is challenged.

The balancing exercise

What can require the court to disregard it is the general personality right, the allgemeines Persönlichkeitsrecht, derived from Art. 2 Abs. 1 GG in conjunction with Art. 1 Abs. 1 GG. Art. 2 Abs. 1 GG guarantees the free development of the personality, and Art. 1 Abs. 1 GG declares human dignity inviolable. Together they protect, among other facets, the right to one's own spoken word and the right to informational self determination.

Against that stands the other party's constitutional interest in effective legal protection and in a functioning administration of justice. A party who cannot prove what was said may lose a claim that is in substance well founded, and that is a real constitutional cost rather than a mere inconvenience.

Neither interest automatically wins. The court weighs them on the facts, and the factors that carry weight in practice include the following.

None of these is decisive on its own. The pattern that emerges is that a recording of publicly perceptible events, in a setting where the recorded person had limited expectations of confidentiality, and where the recording is the only realistic proof of a serious matter, has the best chance. A covertly recorded private conversation, made to build a case, in a dispute where other evidence existed, has the worst.

What the dashcam decision actually decided

The Bundesgerichtshof addressed this directly in its judgment of 15 May 2018 in case VI ZR 233/17, summarised in press release 088/2018. The case concerned a traffic accident and a dashcam recording made by one of the drivers.

The court held that the permanent and indiscriminate recording of entire journeys went beyond what was necessary for preserving evidence of an accident, and that the recording breached the data protection law applicable at the time, which was assessed under the Bundesdatenschutzgesetz in its then applicable version. That much is a finding of illegality.

The recording was nevertheless held usable as evidence in the civil accident liability proceedings. The court reached that result through the balancing exercise rather than through any rule that illegality is irrelevant. The factors it relied on are precisely the ones set out above: the events took place in public road space, the other driver had voluntarily exposed himself to observation there, only what was publicly perceptible had been captured, and traffic accident cases carry typical and well recognised difficulties of proof.

The court also made a structural point that is easy to miss. Breaches of data protection law remain subject to their own enforcement, through supervisory and penal consequences, and that separate enforcement route is part of why an evidentiary exclusion was not needed as an additional sanction. The wrong is punished where the wrong lies, not by distorting the evidence position in an unrelated dispute.

What the decision does not say

It is not authority that any unlawfully made recording is admissible. The balancing came out that way on those facts, and different facts move it.

It is not a decision about § 201 StGB at all. A dashcam pointed at the road captures images of public traffic, not the non-public spoken word of another person, so the criminal provision that governs audio recording was not in play. A covertly recorded private conversation starts from a materially weaker position, because the interest on the other side of the scales is the constitutionally protected right to one's own word in a confidential setting.

And it did not invoke § 34 StGB. The dashcam driver was not arguing a criminal justification, and the court did not need one, because the question before it was admissibility rather than criminal liability.

Why § 34 StGB is the wrong tool here

§ 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 as written, it does two things this discussion does not need. It operates on criminal liability, so at most it explains why a recording was not an offence. And it sets a threshold that an evidence gathering motive almost never meets, because the danger has to be present rather than anticipated and has to be unavoidable by other means.

Wanting proof for a dispute that may arise later is, in the ordinary case, outside § 34 StGB. Courts apply the provision restrictively in this field, because a general evidence gathering justification would leave § 201 StGB with almost nothing to prohibit.

The practical consequence is that arguing § 34 StGB in support of admissibility is arguing the wrong point. Even where it succeeds, it establishes only that no offence was committed, which is a helpful fact in the balancing but not the test itself. And where it fails, that failure does not decide admissibility either, as the dashcam decision demonstrates in a different setting.

Criminal proceedings and the untouchable core

Criminal proceedings run on their own framework. A Beweisverwertungsverbot, a prohibition on using evidence, may follow from a statutory rule or from a constitutional weighing of the seriousness of the intrusion against the state's interest in prosecuting the offence, and the analysis is generally stricter where the state itself obtained the material unlawfully than where a private person did.

One limit is absolute rather than relative. German constitutional case law recognises an untouchable core area of private life, the unantastbarer Kernbereich privater Lebensgestaltung, which is not open to balancing at all. Material reaching into that core is not made usable by any weight placed on the other side of the scales, however serious the matter being investigated.

Recordings of intimate conversations, of a person's inner life, or of family communications in the most protected settings sit closest to that core. Recordings of business dealings, negotiations and transactions sit furthest from it, which is why they are the ones most often admitted.

Employment proceedings

Employment courts apply the same constitutional balancing, and they apply it in a setting where the covert recording is usually made by an employee against an employer or a colleague. The recording is then two things at once: possible evidence of what was said, and a serious breach of trust in its own right.

German employment practice has repeatedly treated the covert recording of a workplace conversation as capable of justifying dismissal, independently of whether the recording is ultimately admitted. That means an employee who wins the admissibility argument can still lose more than the point was worth.

The employer side is not free either. Covert monitoring of employees engages data protection law, works council participation rights and the same personality right analysis, and evidence gathered through disproportionate covert surveillance is where exclusion arguments have the most traction.

What producing the recording costs

One practical consequence is regularly overlooked. Producing an unlawful recording in proceedings tells the other side, in writing, that it exists and who made it.

§ 205 Abs. 1 Satz 1 StGB makes § 201 Abs. 1 and Abs. 2 prosecutable only on application, and § 77b Abs. 1 StGB gives the entitled person three months to make that application. Under § 77b Abs. 2 StGB that period starts at the end of the day on which they learn of the act and the identity of the offender. Disclosure in litigation can be exactly the moment that clock starts.

The civil exposure runs alongside. The general personality right is treated as a sonstiges Recht within § 823 Abs. 1 BGB, § 823 Abs. 2 BGB adds a claim for breach of a protective statute, and § 1004 BGB applied by analogy supports claims for deletion and for an injunction against repetition. None of that is extinguished by a court accepting the recording as evidence.

So the honest assessment of a covert recording is not simply whether it will be admitted. It is whether the benefit of the evidence outweighs a criminal complaint, a damages claim and, in an employment setting, a realistic risk to the employment relationship itself.

The realistic bottom line

A recording made deliberately to manufacture proof, of a private conversation, in a dispute where witnesses or documents existed, is the weakest configuration on every factor in the balancing table. That is the situation most people are in when they ask the question, and the honest answer is that admission is far from assured.

A recording of publicly perceptible events, made for a genuine reason other than building a case, in a matter with real evidence difficulties, is the strongest configuration, and it is the one the dashcam decision describes.

Where the recording does not yet exist, contemporaneous written notes, a witness who can be called, or a written confirmation of what was agreed carry no § 201 StGB exposure at all, and a written record that the other side does not contradict is often stronger in practice than an audio file the court may decline to hear.

For the underlying criminal rule see recording conversations, and for the telephone specific position including business call recording see recording phone calls. The section overview is at German recording law, and broader background is at German law explained.

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