The German press is fascinated and disturbed by videos of American police using excessive force, like the one above.
Why do these videos exist? Because in the United States, it is every citizens' constitutional right to film the police doing their job unless they are interfering with police work:
Taking photographs and video of things that are plainly visible in public spaces is a constitutional right — and that includes the outside of federal buildings, as well as transportation facilities, and police and other government officials carrying out their duties.
Police often tell people to stop filming, but those cops don't know the law. Unless the videos are obscene, you can post those videos to the Internet with full constitutional protection, and that's exactly what people do. They are then played over and over on German websites.
Can you film cops arresting people in Germany and then post that video straight to the Internet? The short answer is: absolutely not. The somewhat longer answer is: Sure, you can do it, but you could well be sued for tens of thousands of Euro, and have to wait for a court decision about whether the public interest in publishing the video was stronger than the privacy rights of the people displayed.
The crucial background to know about this issue is that German law gives people powerful protections over the use of their own image and voice and the protection of their privacy — legal protections which most Germans appreciate, and which don't exist to anywhere near the same extent in the US. The question then becomes whether police officers doing their jobs in public enjoy these same protections. Many German courts have held that they do.
Marvin Oppong, a journalist for the 'torial' (g) blog in Germany who wanted to film his own questioning by police decided to look into the matter in detail. He interviewed several lawyers nad journalists. Here's a summary of what he learned:
- Can you take pictures of the police? German courts are all over the place on this issue. Some say this is basically allowed in public spaces. It also depends on where. Inside buildings such as train stations you may be prohibited from doing so because of station rules. According to other decisions, the police can also request that you delete the photos or promise not to distribute them in any way or they will sue civilly.
- Can you video record your own encounters with the police? Yes, unless it interferes with their work. However, you may face civil or criminal liability if you distribute the results in any way without the officers' consent, since they have a right to control the distribution of their own image. Recording their voices is only permissible in a 'completely open and public' situation. If that is not the case, then simply recording their voices is actually a crime bringing up to three years' imprisonment. You read that right: if the situation is not deemed public (whatever that means), merely recording someone's spoken words is itself a crime. If the policeman knows you are recording his voice and doesn't object, that may be a defense.
- Can you publish photos and videos of a police encounter on the Internet? No: German courts have held that publishing videos of a police officer's conduct on the internet creates a 'pillorying' effect that violates the police officer's right to the protection of his personality (Persönlichkeitsrecht in German). This is so even though you are filming the officer doing his or her job in public. You may be able to publish general photos of public events, but a photo that clearly focuses in on one officer will violate that officer's right to control over the distribution of their own image. Which means you will need the officer's permission to publish it.
- Can police ask you to identify yourself if they see you filming them? Basically, yes. They can also bring you to the police station for questioning if you don't have any personal ID with you.
- Are the rules different for journalists? Possibly. If they are filming an incident of public importance, they may be able to claim that their right to do their job outweighs the officers' rights.
So, to sum up: if you are a private citizen and see German police officers engaging in questionable conduct in public and post a video of that in the Internet — as Americans do hundreds of times every day — you will enter a legal minefield of contradictory court precedents. You will probably expose yourself to tens of thousands of euros in damages as well as possible criminal prosecution. Your only hope is if a court, in your specific case, finds that the public interest served by your publishing the video outweighed all of the restrictions German law places on taping and photographing people. Even police officers doing their job in public.