A Grey Zone under the Spotlight—Illegal GPS Tracking by Private Investigators
| Date | 01 February 2014 |
| DOI | 10.1350/jcla.2014.78.1.889 |
| Published date | 01 February 2014 |
| Author | Anni Pues |
| Subject Matter | German Federal Court of Justice (Bundesgerichtshof—BGH) |
German Federal Court of Justice
(Bundesgerichtshof—BGH)
A Grey Zone under the Spotlight—Illegal GPS
Tracking by Private Investigators
Case No. 1 StR 32/13 (4 June 2013)
Keywords Data protection; Private investigations; Necessity; GPS surveil-
lance; Germany; Self-defence
The District Court at Mannheim convicted two professional private
investigators of offences against the Federal Data Protection Act
(Bundesdatenschutzgesetz—BDSG). The defendants conducted numerous
covert investigations for different clients. The reasons for these investiga-
tions were partly of an economic nature, some were to prepare claims
against employees allegedly committing criminal acts, others were related
to private encounters like marital conflicts or attempts to gain compromising
material against persons with supervisory functions, in order to influence
their actions. For their investigations the defendants made extensive use
of Global Positioning System (GPS) technology by tracking the movements
of the vehicles of targeted persons. These data were used to create
movement profiles of their targets.
The court convicted the defendants, sentencing them to suspended
prison sentences for collecting data without appropriate authorisation,
based on s. 44 and s. 43 para. 2 No. 2 of the Federal Data Protection Act.
The judges argued that no justificatory defence was available for the use of
the technology given that this form of technical surveillance would not
have met the conditions set out in s. 100h of the German Criminal Code
of Procedure (Strafprozessordnung—StPO), governing the conduct of law
enforcement agencies. Given that not even the police would have been
allowed to use GPS tracking methods in those specific cases, the district
court argued that the methods used by private investigators should also be
limited. The judges did not consider whether important interests could
have justified the data collection in any of the individual cases. The
defendants appealed the decision, arguing that the court had erred in a
matter of substantive law by not considering such other conflicting
interests.
Held, dismissing tHe appeal on 17 counts but allowing tHe appeal
and remanding tHe case to anotHer district court for retrial on 12
otHer counts, as a matter of general principle, the use of covert GPS
surveillance technology for private investigations is illegal. However, in
every case the conflicting interests with regard to data protection and its
use will have to be considered. Data collection might exceptionally be
lawful if there is a strong legitimate interest. This may, for example, be the
case in a situation similar to self-defence (s. 32 of the German Criminal
Code, Strafgesetzbuch—StGB), a concept broader than that in England and
Wales. Regarding those counts for which the BGH had enough information
22 The Journal of Criminal Law (2014) 78 JCL 22–26
doi:10.1350/jcla.2014.78.1.889
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