15. January 2014
Forces across North Rhine-Westphalia use Facebook to publish police searches. Is conducting police hunts via Facebook legal? Christian Solmecke, German lawyer and partner at WILDE BEUGER SOLMECKE conducts an appraisal.
Police searches on Facebook
The authorities hope that through using the social network Facebook to conduct police searches, they will be able to reach a broader base of people and solve crimes more quickly. A working group in the Ministry of Interior is currently assessing the benefits and risks of publishing police searches on Facebook.
Christian Solmecke, German lawyer and partner at WILDE BEUGER SOLMECKE, answers some of the important questions surrounding the use of Facebook by police forces.
What do you think about using Facebook for police searches?
“In my opinion, this is not the right way to conduct criminal investigations. Under German law, suspects have a right to the presumption of innocence. Through the publication of photos of suspects on Facebook, this right is adversely affected too greatly.
“Using Facebook to conduct suspect searches is subject to statutory restrictions. Under § 131b German Criminal Procedure Rules (Strafprozessordnung, StPO), the publication of a suspect’s image is only permitted where the accused is suspected of having committed a crime of substantial significance and where other methods of pursuit would have less prospect of success or prove significantly more difficult.
“This boundary must be adhered to. Publishing images of suspects in any other circumstances would be disproportionate, as it would represent a more than minor breach of the suspect’s personality rights.
“The Directive on Criminal and Penalty Proceedings also foresees only a limited use of Facebook for conducting police hunts. The directive initially states that it can be useful to publish police searches on the internet in order to raise publicity amongst internet users. However, it also restricts the publication of images to special websites, including the police’s own website and provides that the authorities should not engage the services of private internet operators.
“Furthermore, the directive requires the authorities to stop using the internet for search purposes as soon as the objective of the internet search has been achieved or where the prerequisites for the publication of images are no longer fulfilled for any other reason. In addition, the state prosecution service must assess at regular intervals and at the latest every six months whether the prerequisites for publishing a search apply and also assess the chances of success of the search method used.”
Where are the legal concerns?
“The biggest concern with publishing images of a criminal suspect, especially on social networks, is that the personality rights of the suspect are infringed. If a suspect is later found to be innocent, their image and possibly other personal details have already been published in connection with a criminal investigation and this association is difficult to reverse.
“There is also the problem that most social networks foresee the surrender of all rights to images once they have been uploaded. Coupled to this is that fact that users can comment on images which may lead to the person being insulted or prejudged. In the worst case scenario, publication of a suspect’s images could lead to calls for vigilante justice.”
“All these factors erode the presumption of innocence.”
What do the police need to pay attention to?
“In my view, the police should restrict the publication of suspects’ photos to police servers and not make use of foreign servers belonging to social networks such as Facebook. In this way, the law enforcement authorities can retain control over the information that is published and if need be, delete or modify details. Once the police search has been concluded, the authorities must ensure that the image is permanently deleted.
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Categories: Criminal Law