Mini­ca­me­ras, etc.: Order from the Hig­her Regio­nal Court of Colo­gne on ille­gal espio­na­ge devices

The­se pro­cee­dings, in which the 1st Cri­mi­nal Divi­si­on of the Hig­her Regio­nal Court of Colo­gne issued its ruling by Order of 9 April 2020 (Case No. 1 RVs 74/20) (only in Ger­man), were trig­ge­red by an appeal against a judgment issued by the Local Court of Bonn in which the appel­lant was requi­red to pay a fine con­sis­ting of 20 dai­ly rates of € 21 each for the deli­be­ra­te pos­ses­si­on of an ille­gal trans­mit­ter in accordance with § 90 of the Tele­com­mu­ni­ca­ti­ons Act. The occa­si­on for this sen­tence was an attempt­ed decep­ti­on in con­nec­tion with the writ­ten com­po­nent of a driver’s licen­se test. The Hig­her Regio­nal Court of Colo­gne found that this exami­na­ti­on repre­sen­ted an insur­moun­ta­ble obs­ta­cle for the even­tu­al defen­dant becau­se of her ina­de­qua­te liter­acy and lan­guage skills.

For this reason, the defen­dant resol­ved to employ mani­pu­la­ti­ve means to pass the test, rely­ing on tech­ni­cal equip­ment and help from third par­ties. Spe­ci­fi­cal­ly, she acqui­red a video trans­mit­ter and recei­ver com­pri­sed of mul­ti­ple com­pon­ents, which she fas­ten­ed “beneath her top, which con­sis­ted of a thin fabric, using a lar­ge quan­ti­ty of adhe­si­ve tape.” The defen­dant made a hole of about 1 mm in her clot­hing to allow the device to read the ques­ti­ons on the test and trans­mit them to a hel­per via WLAN. But as fate would have it, the defen­dant was caught on the day of the test, as were three other test takers, when the exami­ner dis­co­ver­ed the device.

In the sub­se­quent cri­mi­nal pro­cee­dings, the Local Court of Bonn found that the defendant’s device was theo­re­ti­cal­ly capa­ble of recor­ding peo­p­le wit­hout their know­ledge and the­r­e­fo­re ruled that pos­ses­si­on of the device vio­la­tes the pro­hi­bi­ti­on against the abu­se of trans­mit­ters in accordance with § 90 of the Tele­com­mu­ni­ca­ti­ons Act. The court found that this con­duct, in turn, vio­la­ted § 148(1) No. 2(a) of the Tele­com­mu­ni­ca­ti­ons Act, which impo­ses pen­al­ties con­sis­ting of a pri­son sen­tence of up to two years or a fine for vio­la­ti­ons of § 90 of the Tele­com­mu­ni­ca­ti­ons Act.

The Hig­her Regio­nal Court of Colo­gne was cal­led upon to review this decis­i­on and, in par­ti­cu­lar, to cla­ri­fy the con­di­ti­ons under which a trans­mit­ter is con­side­red to be “inten­ded” for the pur­po­se of recor­ding other peo­p­le wit­hout their know­ledge, and the­r­e­fo­re ille­gal. This ques­ti­on has rele­van­ce for manu­fac­tu­r­ers and dis­tri­bu­tors as well, sin­ce § 90 of the Tele­com­mu­ni­ca­ti­ons Act is an inchoa­te offen­se, mea­ning that it is not neces­sa­ry for the per­pe­tra­tor to com­mit an actu­al act, such as using the device to make sur­rep­ti­tious recor­dings: rather, mere pos­ses­si­on of the device is pro­hi­bi­ted, as are its manu­fac­tu­re, dis­tri­bu­ti­on and impor­ta­ti­on. Com­pa­nies which dis­tri­bu­te such devices face not only the thre­at of cri­mi­nal pro­cee­dings but also the pro­s­pect of trou­ble with the Fede­ral Net­work Agen­cywhich takes a hard line against the dis­tri­bu­ti­on of the­se devices, impo­sing pen­al­ties of up to € 25,000 (only in German).

The Order from the Hig­her Regio­nal Court of Colo­gne beg­ins by sta­ting that the judgment from the Local Court of Bonn does not estab­lish to a suf­fi­ci­ent degree that the device was inten­ded to record peo­p­le wit­hout their know­ledge and that it should the­r­e­fo­re be clas­si­fied as an ille­gal trans­mit­ter. The court’s state­ments con­cer­ning the requi­re­ment that the device be inten­ded for this pur­po­se are exten­si­ve and very hel­pful for manu­fac­tu­r­ers and dis­tri­bu­tors, who should deter­mi­ne for their own secu­ri­ty whe­ther the pro­ducts they manu­fac­tu­re or dis­tri­bu­te are pro­hi­bi­ted devices. The court found that a trans­mit­ter is inten­ded for this pur­po­se “if it is clear from the start that it ser­ves no wort­hy pur­po­se, but rather ser­ves only to make secret recor­dings of other people.”

Accor­ding to the Hig­her Regio­nal Court of Colo­gne, this ques­ti­on is not deter­mi­ned by the user’s actu­al pur­po­se, or the way in which the user plans to use the device. Rather, the inten­ded pur­po­se must be deter­mi­ned in an objec­ti­ve man­ner, kee­ping in mind that “the cri­mi­nal pur­po­se need not be the transmitter’s only pos­si­ble use.” The deter­mi­na­ti­on as to whe­ther the device’s pri­ma­ry pur­po­se is to make sur­rep­ti­tious audio or video recor­dings must be made based on the inten­ti­ons of tho­se who deve­lo­ped, manu­fac­tu­red or dis­tri­bu­ted the device. This deter­mi­na­ti­on may be based on an objec­tively evi­dent mani­fes­ta­ti­on of their inten­ti­ons as well as the fin­ding that cer­tain uses were cle­ar­ly inten­ded or foreseen.

This decis­i­on by the Hig­her Regio­nal Court of Colo­gne is a wel­co­me deve­lo­p­ment becau­se it brings more cla­ri­ty for manu­fac­tu­r­ers and dis­tri­bu­tors: the ques­ti­on as to whe­ther the inten­ded pur­po­se of a trans­mit­ter is the making of secret video or audio recor­dings is not deter­mi­ned by the con­cep­ti­ons of their cus­to­mers or users. But in addi­ti­on to objec­tively evi­dent state­ments of pur­po­se, such as adver­ti­sing state­ments and pro­duct descrip­ti­ons, this assess­ment may also take into account uses which were cle­ar­ly fore­seen. A mere state­ment of pur­po­se from the manu­fac­tu­rer or dis­tri­bu­tor may the­r­e­fo­re pro­ve cri­ti­cal, par­ti­cu­lar­ly if the­re are clear inci­dents of abu­se. An exam­p­le is the “My Fri­end Cayla” doll, which was taken off the mar­ket by the Fede­ral Net­work Agen­cy in 2017 based on a legal opi­ni­on from Ste­fan Hes­sel (only in Ger­man). Accor­din­gly, manu­fac­tu­r­ers and dis­tri­bu­ters should con­ti­nue to careful­ly assess sus­pi­cious devices.

If you have ques­ti­ons about § 90 of the Tele­com­mu­ni­ca­ti­ons Act or would like to know whe­ther a pro­duct may be cover­ed by the pro­hi­bi­ti­on, plea­se cont­act us.


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