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 Agency, which 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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