The permissibility of continuous video recording by dashcams under data protection law has always been controversial.
There is no established case law to date.
Now – as far as can be seen – a higher regional court has accepted the use of dashcam recordings as evidence in civil proceedings for the first time.

Dashcam records traffic accident

In the case to be decided by the Higher Regional Court of Stuttgart, two cars collided at a bottleneck.
The dashcam user drove past cars parked on the right-hand side.
However, the oncoming driver overlooked the dashcam user and was unable to swerve or brake in time.
The result was an accident with several thousand euros of damage.

The driver with the dashcam asserted his claims for damages in civil proceedings.
The evidence based solely on the statements of the two parties involved was not entirely clear until the dashcam recordings were analyzed.

However, it is clear from the video recordings that the other driver only reacted at the last second.
The speed of both vehicles could also be seen from the video recordings.
According to an expert witness, the course of the accident could not have been reconstructed in detail without the dashcam recordings.

Dashcams as evidence: no uniform case law

The use of such dashcam recordings has been highly controversial to date.
Some local and regional courts have so far rejected the use of dashcams for data protection reasons.
In particular, the permanent dashcam recordings of uninvolved third parties are inadmissible.
In 2016, the German Traffic Court Conference also took a critical look at the use of dashcam recordings in court proceedings.

However, other courts – such as the Nienburg District Court and the Nuremberg District Court – ruled in favor of the admissibility of dashcam recordings as evidence.
The OLG Stuttgart now also follows this view.

“Revolution” for the presentation of evidence in civil proceedings

If the case law of the Higher Regional Court of Stuttgart were to prevail nationwide in the future, this would be tantamount to a revolution in traffic law proceedings.
This is because up to now, road traffic accident proceedings have often been very slow and/or riddled with contradictory witness statements.

The Chairman of the Senate, Hans-Joachim Rast, emphasized that witnesses repeatedly made statements which, after hearing an expert witness, proved to be simply impossible under natural law.
This problem alone made it necessary to admit dashcams as evidence.
This is the only way to ensure a fair trial for all parties.

Dashcam may only film the road

However, in Rast’s opinion, the admissibility of use as evidence also depends on the fact that the dashcam only films the road and not the private or intimate sphere of a third party.
If this requirement is met, the infringement of personal rights is to be classified as relatively minor.
In public spaces, everyone must expect to be photographed or filmed.
Therefore, the interest of the person who is entitled to a claim under civil law is much more important.

However, the data protection consequences of such a decision should not be ignored.
Ultimately, the decision of the Higher Regional Court of Stuttgart may lead to more and more people equipping their vehicles with dashcams, which are often controlled directly via smartphone.
Accordingly, this will sooner or later lead to widespread “surveillance” of the traffic area.
However, this would then have to be counteracted with technical protection mechanisms – such as the automatic overwriting of recordings after a certain period of time.

Decision of the BGH not yet expected

However, it will be some time before the Federal Court of Justice finally clarifies the issue.
In the case before the Higher Regional Court of Stuttgart, the parties decided to reach a settlement during the main hearing after viewing the dashcam recordings as evidence.

The user of the dashcam ultimately had to pay a third of the damage incurred himself.
In the opinion of the court and the expert, he did not drive past the parked cars at an appropriate speed.
By using his dashcam, he therefore also scored a small own goal.