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Mug Shots: Requirements and Data Protection Risks
It may sound like a horror, but for some bad boys out there it has already become reality: When you open the newspaper, your own face, which has been put out to be wanted, looks at you. But even if you have been spared this so far, that does not mean that it cannot always be this far! Reason enough to clarify under what conditions mug photos may be published at all and what risks result from this from a data protection point of view.
Cluedo with a difference
Do you like to play detective? Anyone who liked to look for the perpetrator at Cluedo as a child should have come across reality at the latest as an adult: The classic witness questioning who killed Ms. or Mr. XY in the kitchen with a pipe wrench causes wild speculation, but often does not lead to the desired success of the investigation. In order to find suspects, more or less detailed mug shots are often required.
Even if this term is often associated with the well-known “Wanted” wanted posters, a touch of the Wild West is still finding its way into the gossip papers, TV shows and authorities around the world. The police look for suspects every day. The methods may have changed, but the goal remained the same.
How do you solve criminal cases? Often an attentive eye is enough. Maybe the person you're looking for is your neighbor or postman? Photos that are published, for example, on the search portal of the North Rhine-Westphalia police or under "Aktenzeichen XY ... unsolved" can help with identification - and thus possibly prevent future criminal offenses.
Escape pointless - requirements for publication
No matter how noble the end, it does not always justify the means used. Do not panic! As always, the following applies: After a criminal act, keep calm and ensure proportionality. Both the StPO and the BDSG make a "testimony" on this.
Witness No. 1: the StPO
The requirements for the publication of images of the accused or witness can be found (at least for the most part) in Sections 131b, 131c and 131 (4) StPO:
- There is a suspicion of a criminal offense of considerable importance.
- The investigation of the crime or the establishment of the identity of an unknown perpetrator must be much less promising or much more difficult in other ways.
- In the case of witnesses, the search must be otherwise hopeless or significantly more difficult.
- It must be weighed against the right to informational self-determination of the person concerned.
- The accused must be named as precisely as possible and possibly described.
- The offense of which he is suspected, the place and time of the offense and significant circumstances can be indicated.
- It must be clear whether the person is wanted as a suspect or a witness.
- A judge has to order the public search with a photo.
- The public prosecutor or their investigators only issue an order in the event of imminent danger.
When is a criminal offense of major importance? This is based on the catalog of criminal offenses in Section 98a (1) of the Code of Criminal Procedure. In addition, the Federal Constitutional Court (Az. 2 BvR 581/01) ruled:
"Such an offense must at least be assigned to the area of medium crime, seriously disturb the legal peace and be capable of significantly impairing the population's feeling of legal security."
Witness No. 2: the BDSG
A statement can also be drawn from data protection law. Due to Directive (EU) 2016/680, the GDPR is not applicable because the mugshots are passed on or published by investigative authorities, § 45 sentence 1 BDSG.
In this case, the legal basis for data processing in the form of publication results neither from Art. 6 GDPR nor from Sections 45 ff. BDSG. The present data processing is based rather on §§ 131b, 131c and 131 Abs. 4 StPO!
The publication of the wanted photos must be lawful (§ 47 No. 1 BDSG) and earmarked (§ 47 No. 2 BDSG). If mug shots are distributed by the authorities for the sake of fun, because Bonnie and Clyde are just looking stupid, the only thing left to say is: Hands up, this is data protection!
The victim - data protection
The publication of mug shots may be considered commonplace, but that is what makes this murder weapon so treacherous: It is not as easy to recognize as the knife in the chest. However, data protection can still be cut off piece by piece if the aforementioned requirements are ignored.
Imagine if your photo was shown on television or in magazines - but you were innocent. Are you feeling uncomfortable? The consequences would be fatal, the pillory sends its regards. The reaction to this differs only slightly from the Middle Ages: Back then, rotten vegetables were thrown, today they are skeptical looks. Vigilante justice threatens.
Nobody can estimate what will happen to the photos after they have been published. Once on the Internet, always on the Internet. While the police still want to do good when it is published, the next best troll uses the photo to play jokes. This is also the reason why a search via Facebook must be viewed so critically.
Real life writes the best crime novels. The Essen police recently made the embarrassing mistake of looking for someone who was completely innocent. The mug shot was then deleted and the media asked to remove it. After a short internet research, the result is a creepy picture: Such mistakes happen again and again.
Since, according to the judgment of the Hamburg Administrative Court (Az. 17 K 203/19), the face database for the G20 search does not have to be deleted, it cannot be ruled out that public searches for innocent people could also be carried out in this context.
The fact that True Crime can turn into comedy is shown by two cases in which those wanted sent in their own pictures after publishing unfavorable mug shots, which should be used for the search. It was probably only at this point that the two noticed: crime is not worth it!
About the author
The contribution was made by Dr. Data protection written. Our employees, who are usually lawyers with IT skills, publish articles under this pseudonym. more →
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