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Suppose a customer enters a store. The business, through an employee, treats the customer unlawfully. Perhaps this is by verbally or physically abusing them, discriminating against them, or denying their consumer rights or rights as a member of the public. The customer begins to film the employee using their phone, and the employee strongly objects to the recording. Meanwhile, in case it is relevant, the business is constantly recording everyone within the premises with its CCTV.

The customer is an individual who will only be using their recording for private household purposes. But they are informed by the indignant employee(s) that they have no right to record anyone without their permission.

Does the employee, in a purportedly individual capacity, have any grounds to object to the customer recording them “without their consent“?

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  • @ohwilleke what is crash blossom ambiguity? Commented Mar 18, 2023 at 23:11
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    The original title contained the word "business record" next to each other which is such a common adjective-noun phrase that it read like it was referring to an accounting document rather than the intended parsing of (customer of a business) record (verb)., even though the first reading was very weird.
    – ohwilleke
    Commented Mar 19, 2023 at 1:23

2 Answers 2

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The customer must stop recording

The customer is on the store’s premises and an agent of the store has told them to stop. If they continue recording in spite of this they are now trespassing and can be ordered to leave. If they stay in spite of this, the police can remove them.

Filming from a public place cannot be prohibited. So, if the person were to leave the store and film into it, that would be fine.

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The filming is illegal in

In Germany, people have a Recht am Eigenen Bild (right of pictures taken of them* under § 22 Kunsturheberrechtsgesetzes (KUG). It is part of personality rights.

Due to those rights, combined with the , you can under no circumstances publish or give away the recordings without the agreement of the recorded person.

Since a case from 2000 at the highest court, making recordings while there is express non-consent of the subject and the subject is the center of the picture or video is a violation of the law. It can even be a felony if the picture depicts anything intimate, such as someone's flat or even worse, their undressed body.

In general, the following rules can make photography hard:

  • Filming or Photographing on someone else's property without the consent of the owner is illegal - that includes publicly accessible areas. That is part of the Hausrecht.
    • If the employee demands you to stop filming, you have to do so based on Hausrecht. He is agent of the Owner.
  • Because the subject loses control of the publication after the photo is made and can't control the publication after the fact, they can prohibit the recording from being taken in the first place, as the highest court ruled in BVerfGE NJW 2000, 1021
    • The employee is no person of public interest. Even if a person of public interest can bar photos made of them.
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  • Even though the employee is present in a capacity of representing their corporate employer? Commented Mar 18, 2023 at 20:43
  • That does not matter in germany. He is a person. As a private citizen, you can't record them. The company has a justified interest under GDPR, the customer does not.
    – Trish
    Commented Mar 18, 2023 at 20:50
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    This answer is wrong or inapposite. The OP asked about the lawfulness of recording, and for the most part this answer refers to publishing the recording. These are separate issues. Furthermore, even if the GDPR applied to the customer whose rights are violated by the employee, art. 6.1(d) and (e) entitle the customer to record the incident for evidentiary purposes. The law does not require the customer to risk that the company's recording will be lost, altered, or inconclusive. Commented Mar 18, 2023 at 21:09
  • The customer also is not subject to gdpr if they’re using the recording strictly for household purposes, no? Commented Mar 18, 2023 at 21:26
  • An obvious premise for the protection of a person's privacy is that the person is acting lawfully. The OP's premise is the opposite of that: Someone "treats the customer unlawfully". Also, given the OP's scenario that "a customer enters a store [...] as a member of the public", the presumption that the matter typically would count as private (in the court's words: "gewöhnlich als private geltende Angelegenheiten") seems misplaced. Commented Mar 19, 2023 at 0:44

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