D: The Federal Labor Court on the prohibition on the use of evidence obtained by listening in on telephone conversations

Category: Nachrichten, Urteile
By: K. Schiefer - 2B Advice GmbH - the privacy benchmark

In the opinion of the Federal Labor Court (Bundesarbeitsgericht, BAG) in its judgment of 04.23.2009, merely listening in on a telephone conversation can lead to a loss of rights.

Like the clandestine recording of conversations, clandestine monitoring of telephone conversations can serve a wide range of purposes - quality assurance in call centers is just one of many potential uses. Attempting to procure a witness for law enforcement by involving a third party is likely a particularly frequent occurrence. The case before the BAG also involved such an "additional" witness. Here, one party had relied on the testimony of an acquaintance, who happened by chance to be in the room, as evidence of the content of a telephone conversation.

 

In its judgment of 04.23.2009 (File ref. 6 AZR 189/08) the BAG held that by intentionally allowing another person to be present in the room to listen in on a telephone conversation - for instance by activating the loudspeaker of the telephone or holding the receiver away from his ear - the party calling the witness encroached upon the personal rights of the person at the other end of the line. Pursuant to the case law of the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG), the infringement on personal rights in these cases means that the eavesdropper is excluded as a witness insofar as the content of the telephone conversation is concerned.

 

However, the prohibition on the use of the witness' testimony as evidence does not apply if the party calling the witness did not contribute in any way to the third party being able to listen in on the conversation.

 

It follows from this decision that targeted "procurement" of witnesses is barely possible.

Documenting the content of conversations for the purposes of evidence by involving a third party is thus subject to strict limitations. Thus, as a matter of principle, notice should be given in the event that a third party is also listening in on a conversation; continuation of the conversation despite notice being given can then be taken to constitute consent to the surveillance.

(1421 times viewed)