On the current legal situation of documenting police violence

UPDATE: The following judgement of the state court Osnabrück from the 24.09.2021 (10 Qs 49/21) confirms the statements in the Text: Link

On the occasion of the report of the political magazine Panorama “Police violence: Filming forbidden?” of July 22, 2021, we as an initiative against police violence want to explain the current legal situation.

First of all: Photographing and filming police operations is basically allowed!

In 2015, the Federal Constitutional Court (BVerfG) ruled that filming police operations is legal, since recordings are intended to provide evidence for criticism of government actions (Ref.: 1 BvR 2501/13). The Panorama report contains current statements by police instructors who clearly consider documenting operations to be legal and even recommend it.

Since police officers, as public officials, act in public during their missions, they must accept in principle if their missions are documented, for example by being photographed or filmed. Precisely because of the monopoly on the use of force, the police are subject to particularly strict control by the rule of law. This includes the right to film officers at work.

Since not all police officers want to accept this, they often forbid it. If they justify the ban at all, they argue that the not “publicly spoken word” is recorded and published. So, firstly, they claim that the conversations in their assignment would not be public and, secondly, they imply to the documenting persons that they would publish the recordings. Both assertions are insinuations and not facts. This is because the first refers to Section 201 of the Criminal Code, which criminalizes the violation of the “confidential word,” for example, by publishing audio recordings. This assumes that smartphone videos are always recorded and published with sound. However, filming or photographing the police operation does not automatically indicate the intention to publish the recordings. The BVerfG also clarified here in 2015 that the unauthorized dissemination of the recordings may not simply be assumed.

“In principle, the official word spoken by a police officer to a citizen is a publicly spoken word and is therefore not covered by the corresponding criminal provision of § 201 StGB,” explained Prof. Fredik Roggan of the Brandenburg Police University in the Panorama article. This is because a police officer does not act as an individual, but as a public official. Police officers are subject to a misunderstanding if they confuse non-publicity with undesirability. Moreover, there is a de facto public when potentially other persons are present or observe an operation. Thus, assertions of non-publicity of the spoken word are fundamentally false. In addition, “If the police officer is allowed to film, the citizen is allowed to film back,” according to Prof. Roggan. Since very many and increasingly more operations are filmed by the police and bodycams will be increasingly used in the future, this supports the right of filming by citizens. Prof. Rafael Behr, from the Academy of Police Hamburg, even clearly advises in the Panorama contribution to film. After all, any police action must be lawful anyway, regardless of whether it is filmed or not.

In addition to police officers, there are also public prosecutors who consider conversations between police officers during operations as non-public words, as the report also shows. However, such assessments must take into account the dependencies of public prosecutors on the police. Prosecutors are regularly dependent on the cooperation of police officers in their investigations and depend on their decisions and goodwill in their own work. This is one reason why criminal cases against police officers are usually dropped and charges against police officers almost invariably remain without consequence. After all, in the next case, the same officers are potentially helpful or obstructive in their own prosecutorial investigations.

Depending on the consideration of different legal interests (e.g. the right of personality of the police officers vs. the public’s interest in information) and the type and circumstances of the police action, different court decisions in the past have come to different results in the assessment of whether filming of operations was permissible. In order to exclude a potential violation of the personal rights of officers when it is not yet clear whether documented police behavior was unlawful, the faces of police officers can be pixelated prior to the publication of operations. However, if assaults and acts of violence clearly occurred, “a reasonable weighing of interests would have to lead to the fact that such images may also be published unpixed in order to enable the identification of the perpetrators” .It is true that under certain circumstances the police are allowed to prevent filmmakers from filming an operation. However, the officers need a justified assumption to do so. The BVerfG understood this to mean the existence of a concrete danger to an object protected by the police, which would have to be examined in each individual case.

There are many indications that police officers only prohibit recordings when they want to prevent evidence of their conversations, actions and behavior. In general, the police are not against video recordings of passers-by or other civilians. After all, they themselves regularly ask people to upload film and video material to police platforms, for example after demonstrations, riots or events after which people involved are to be identified.

A fundamental prohibition or unfounded ban on recording during police operations, which is even followed by the removal and confiscation of recording devices such as smartphones, is therefore almost invariably illegal.If the police take away devices, a confiscation protocol should be requested immediately, but not signed, and a complaint should be filed against the measure, proof of which should also be requested. No one is required to provide information other than what is on the identification card. Therefore, no questions from the police should be answered, whether it is about one’s own actions or what was observed and when. Other people should be made aware of this right if they do not know it and talk to the police.

The above-mentioned ruling of the BVerfG also states that filming police officers does not entitle the police to establish the identity of those being filmed without further ado, as this establishment constitutes an unlawful encroachment on the right to informational self-determination under Article 2 paragraph 1 in conjunction with Article 1 paragraph 1 of the German Basic Law.

Especially in times of massively increasing surveillance and too frequent assaults, mistreatment and other unlawful behavior by the police, police operations should always be documented. Even without evidence, such incidents should be reported to independent bodies, such as our initiative, regardless of whether or not further action is planned against those responsible.Publishing documented police violence on social networks can generate pressure through public interest, spark discussions and highlight the need to limit police powers. Moreover, if legal action is to be successfully taken against police violence, evidence is necessary, e.g. in the form of technical material.  There are cases in which victims of police violence were only able to prove the assaults of the police and their lies in court and escape their own prosecution because they had made a recording of the situation without being noticed. We therefore see recordings of operations as necessary to create conditions for making police violence known and enabling consequences.

Film or photograph police operations! 

If officers want to prevent you from doing so or even steal your equipment, argue firmly, loudly and briefly:

  • Documenting operations is basically allowed. You are not allowed to prevent this if the recordings are not published.
  • I film without sound. I am filming without portrait shots. I do not intend to publish the recordings.
  • I am recording the situation to provide evidence for the prosecution.

If you don’t get your way and can only keep your device if you stop holding it up to the police, take it down and keep the footage going.
If devices have been taken from you:

  • Demand a seizure report. Demand proof of it.
  • File a complaint and insist that it be recorded in writing.  Demand proof of this.
  • Do not sign anything.
  • Asks for the names of the officers and their service cards in order to check them.
  • If necessary, files an official complaint afterwards.