Dashcam Footage as Evidence in Criminal and Civil Proceedings

Dashcam footage can help document road accidents and dangerous driving manoeuvres. At the same time, it captures other road users and may therefore infringe their privacy. Whether such footage may be used as evidence in court depends on whether it was lawfully recorded and on the rules applicable to the relevant proceedings.

Data Protection Limits

The Federal Act on Data Protection (FADP) places certain limits on the use of dashcams. It is particularly relevant where other people or licence plates are identifiable in the footage. Other road users may not simply be filmed continuously without adequate justification. The collection of data must be carried out in good faith, be proportionate and serve a specific, identifiable purpose. Continuous recording without a specific occasion may therefore raise data protection concerns. An infringement of personality rights may be justified by an overriding private or public interest or by law. In the context of dashcam footage, however, such grounds for justification are recognised restrictively. The mere interest in identifying other road users who commit traffic offences is not sufficient.

Admissibility of Dashcam Footage in Criminal Proceedings

Under Article 141 para. 2 of the Swiss Code of Criminal Procedure (CrimPC), privately obtained evidence that was obtained unlawfully may generally be used only if it is essential to investigate a serious offence and the prosecuting authorities could have obtained it lawfully.

The Federal Supreme Court addressed the admissibility of private dashcam footage in FSC 146 IV 226 and FSC 147 IV 16. It clarified that evidence obtained in breach of the FADP or the Swiss Civil Code may be unlawful (FSC 147 IV 16).

The first step is to determine whether the recording constitutes an infringement of personality rights and whether there is a possible ground for justification under Article 31 FADP (FSC 147 IV 16). If the infringement of personality rights is justified, the evidence may generally be used. If there is no ground for justification, the next step is to determine whether the recording may nevertheless be admitted under the rules of criminal procedure (FSC 147 IV 16). In particular, it must be considered whether the offence is serious (FSC 147 IV 16).

In FSC 151 IV 124, the Federal Supreme Court also clarified that, when determining whether the prosecuting authorities could have obtained the evidence lawfully, the general question is whether the law would have permitted such evidence to be obtained.

In the case of a minor traffic violation under Article 90 para. 1 of the Road Traffic Act, admissibility must therefore be assessed particularly critically. As a rule, dashcam footage will not be admissible because the required level of seriousness is lacking. Dashcam footage may not automatically be used as evidence simply because it shows a traffic violation. What matters is whether the footage was obtained lawfully and, if it was obtained unlawfully, whether the statutory requirements for its use are met.

Admissibility of Dashcam Footage in Civil Proceedings

The standard in civil proceedings differs from that in criminal proceedings. Illegally obtained evidence is taken into account only if the interest in establishing the truth outweighs the opposing interests (Article 152 para. 2 of the Swiss Code of Civil Procedure (CPC)). A serious criminal offence is not necessarily required. The decisive factor is the balancing of interests in the individual case.

Conclusion

Dashcam footage is not automatically admissible or inadmissible in court. The first question is whether it was obtained lawfully, possibly on the basis of a ground for justification. If it was obtained unlawfully, additional requirements apply to its use in criminal proceedings. In civil proceedings, the relevant question is whether the interest in establishing the truth outweighs the opposing interests.