Can unlawfully obtained video recordings be presented as evidence in civil proceedings?

Austrian Supreme Court decision dated 24 May 2018 (6 Ob 16/18y)

The background of the case is the following:

The properties of the plaintiffs and the defendants are situated directly next to each other. The plaintiffs’ property can only be reached via a path leading through the defendants’ property. In this respect there is an easement (Dienstbarkeit) in favour of the plaintiffs (walking and driving). The defendants accused the plaintiffs of illegally parking their vehicles on the access road and other areas of the defendants’ property. Therefore, the defendants obtained a cease-and-desist order (Unterlassungsurteil).

For the purpose of obtaining evidence (to be able to prove offences of the plaintiffs in the future), the defendants installed video cameras on their house that were directed not only at their own property but also covered parts of the path leading to the property of the plaintiffs. The plaintiffs sought the removal of the video surveillance system. The courts of first and second instance dismissed the plaintiffs’ complaint. The Supreme Court reversed the decisions of the lower courts and – in addition to referring the case back to the court of first instance – stated inter alia the following:

1.    The reasons listed in § 50a Para 4 Data Protection Law (“DSG 2000”; now: § 12 Para 2 No 4 and § 12 Para 3 DSG 2000), which justify private video surveillance, do not cover obtaining evidence in civil proceedings.

2.   Due to this lack of legal justification, the video surveillance of the property therefore violates the plaintiffs’ right of personality (§ 16 Austrian Civil Code, “ABGB”) as well as their fundamental right to data protection.

3.   As to using private video surveillance recordings as evidence in civil proceedings, which was not assessed, nothing can be derived from this.

The legislator had implemented in § 12 and 13 of the former data protection act (DSG 2000) a system of balancing of interests as well as a proportionality test in order to assess the admissibility of private video surveillance. Presumably, the legal assessment of the Supreme Court in the decision at issue would have been the same under the new regulations of the new DSG.

Can these unlawfully obtained video recordings be used in future civil proceedings nevertheless?

The Austrian Civil Procedure Code (“ZPO”) does not contain any provision regarding the usability of unlawfully obtained evidence.  Thus, in general even evidence obtained unlawfully must be taken into account by the court.

  • According to some doctrines, exceptions exist for evidence that was obtained as a result of a violation of provisions of criminal law that concern the core area of constitutionally protected fundamental rights and freedoms (e.g. torture).
  • Pursuant to other doctrines, it must be strictly distinguished between the admissibility of producing evidence according to material law provisions (e.g. data protection law, criminal law) and the question of procedural usability as evidence (described as the "separation principle").

In the decision at issue the Supreme Court hints at the "separation principle" by stating that "For the usability […] as evidence in civil proceedings […] nothing can be derived from this."

Thus, the substantive inadmissibility of video recordings under data protection law must be assessed independently of whether such video recordings can be used as evidence in civil proceedings.