Essen Regional Court, decision of 6 November 2023, Ref.: 10 S 122/23
Whether a privately recorded video may be used as evidence in civil proceedings depends on a balancing of interests. For example, the interest of the video owner in providing evidence must regularly be weighed against the private interest of the opposing party. This has led to disputes regarding the usability of so-called dashcam recordings in road accident proceedings in particular.
In the Essen Regional Court case discussed here, the court had to decide on this in the appeal proceedings,
Facts of the Case:
Tenants had rented flat and carport
The defendants in this legal dispute were the tenants and the plaintiff was the landlord. A flat on the ground floor in Bottrop was rented, as well as a parking space with a carport and a shed, which was accessible from the rear building through a wall opening made by the defendants.
In a letter dated 18 November 2022, the plaintiffs gave notice to terminate the tenancy without notice. The termination was based on an incident on 15 November 2022, on which day tradesmen were on site for the plaintiffs to carry out renovation work. The tradesmen used the communal tap on the outside wall to mix building materials. The defendants did not agree to this.
Landlady filmed the tenants insulting and threatening the landlady
In a written statement dated 20 December 2022, the plaintiffs again declared the termination of the tenancy without notice and based this on damage to property with regard to the wall breakthrough and the creation of a condition contrary to building law.
The plaintiffs alleged that the defendants had loudly insulted them in Turkish, including as "Slut" and "Hooker". In addition, the defendants had said that they would shout loudly out of the window every time the plaintiff received visitors. She had also said: "You can sell your cunt on the street, I don't have what you're looking for". In addition, the defendants had made hand signals as if they wanted to light something and then gesticulated at the rising smoke.
Landlady was insulted as a slut and hooker, among other things
Finally, one of the defendants gesticulated threateningly in the direction of the plaintiff and twice "I'll kill you" said.
The plaintiffs also claim that the parking space/carport and the shed were not rented to the defendants. They would not pay rent for this either. The use of the shed for residential purposes is also illegal, as there is no planning permission for this.
As evidence of the insults and threats, the plaintiff submitted 2 mobile phone videos, she had filmed the defendants openly.
Local court had watched videos and sentenced the tenants to eviction
The local court at first instance took evidence and inspected the videos and ordered the defendants to vacate the premises and hand them over. The defendants appealed against this judgement to the Essen Regional Court and argued that the videos inspected could not be used. At the very least, the witnesses named by the defendants should have been heard.
Decision of the Essen Regional Court:
Regional court followed the opinion of the district court
In its decision, the Regional Court followed the Local Court and ruled that the Local Court had taken the evidence in an unobjectionable manner and had convincingly assessed it. According to the results of the inspection of the video recordings at the hearing, the defendants had insulted and threatened the plaintiff. Thus, the plaintiff was described as "Piece of shit" had been insulted and she had been told: "You are not human„.
The threats "otherwise I'll kill you" and "You will lose the house at some point anyway" are evident from the videos.
Evidence would have shown that the landlady had been insulted and threatened
§ Section 286 ZPO in conjunction with Article 103 (1) GG obliges the court to fully consider the facts presented by the parties and the evidence offered by them. An inadmissible taking of evidence therefore does not automatically mean that findings obtained in this way may not be utilised in the assessment of evidence. Evidence obtained by the court may only not be used if this is expressly required by law (e.g. Section 51 BZRG with regard to expunged convictions or convictions ready for expungement, Section 7 Para. 2 Motorway Toll Act (AutobahnmautG) for records of toll collection systems) or if the taking of evidence violated a constitutionally protected right of a party without this appearing to be justified in order to guarantee an interest of the other party or another legal entity that is deemed to be of higher value in the context of the balancing of interests in accordance with the principle of proportionality.
Interest in utilising recordings as evidence outweighed interest in privacy
It is true that (covert and overt) photo, film or video recordings without the consent of the person photographed would regularly constitute an infringement of Article 2 (1) of the Basic Law and would violate their right to their own image (Section 22 KUG); this also applies to recordings made in areas accessible to the public. However, these could - insofar as the inviolable intimate sphere is not affected (see OLG Düsseldorf, judgement of 5 May 1997, Ref. 5 U 82/96, NJW-RR 98, 241) - be justified in individual cases and thus exceptionally exploitable if the interest in the exploitation of the recordings outweighs the opposing party's interest in privacy (see ECtHR, judgement of 27 May 2014, Ref. 27 May 2014, Ref. 10724/09, NJW 2015, 1079 [1080]; Saenger, in Ders., ZPO, 9th ed., 2021, Section 286 marginal no. 27).
The district court had correctly found that the interests of the plaintiffs in presenting evidence predominated.
Source: District Court of Essen
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