Is it legal to record a job interview in Germany? Criminal law, GDPR and works councils

Recording a job interview in Germany is legal only with the candidate's consent. Section 201 of the Criminal Code (StGB) makes it a crime to record another person's non-public spoken words without authorization, with up to three years in prison or a fine. Data protection law applies on top: the GDPR requires a lawful basis, and since the Federal Labour Court held on May 8, 2025 that section 26(1) of the Federal Data Protection Act (BDSG) must remain unapplied, employers rely directly on the GDPR. If the company has a works council, it may have a co-determination right over the recording or scoring tool. This is the position as of October 2026.

This page adds Germany to our country series alongside the UK, Canada and Australia. For the EU-wide GDPR position on lawful bases, see legitimate interest in recruitment.

Three layers of law, at a glance

Is recording without consent a crime in Germany?

Yes. Under section 201(1) StGB, anyone who "without authorization records the non-publicly spoken word of another on a sound carrier," or uses or makes such a recording available to a third party, faces "imprisonment of up to three years or a fine" (our translation). Attempt is also punishable, and the recording equipment can be confiscated. Prosecution of the basic offense generally requires a criminal complaint from the person affected (s.205 StGB).

A job interview is a conversation between the parties, not addressed to the public, so it is "non-public spoken word" in the statute's sense, whether held in person, by phone or by video. Consent is what makes a recording authorized. Germany has no equivalent of the US one-party consent rule: the interviewer being a participant does not authorize recording the candidate. Three practical points follow:

• Ask before you press record, not after the candidate has started speaking, and keep a note that they agreed.
• Treat live transcription as recording. We found no German court decision on whether streaming audio to a speech-to-text service without storing it counts as recording "on a sound carrier." Assume it does and ask for consent either way.
• Stop if consent is withdrawn. Offer a genuine alternative, such as handwritten notes, and do not hold the refusal against the candidate.

What does data protection law add?

A recording or transcript of an interview is personal data, so the GDPR applies in full: a lawful basis under Article 6, information to the candidate under Article 13, data minimization, a retention limit and the candidate's rights of access and erasure (Regulation (EU) 2016/679). Article 88 lets member states adopt "more specific rules" for employment data, and Germany did so in section 26 BDSG, which treats applicants as employees ("applicants for an employment relationship ... are deemed employees," s.26(8)).

What happened to section 26 BDSG?

• March 30, 2023. In Case C-34/21, the Court of Justice of the EU held that a national rule "cannot constitute a 'more specific rule'" under Article 88(1) GDPR if it does not meet the conditions in Article 88(2), and that such rules must be disregarded unless they are a valid legal basis under another GDPR article (CJEU press release 54/23). The case concerned a provision of the state of Hesse on the data of teachers and other public employees.
• May 8, 2025. The Federal Labour Court (Bundesarbeitsgericht) held that section 26(1) BDSG does not meet the requirements of the Article 88 opening clause, because it lacks the protective measures Article 88(2) requires, and "has to remain unapplied" (BAG, 8 AZR 209/21; our translation). Where no compliant national rule exists, employee data processing is governed directly by the GDPR.
• October 2026. Section 26 is still printed in the BDSG, but no replacement has been enacted. A 2024 government draft of an employee data act (Beschäftigtendatengesetz) was not passed before the end of the last parliamentary term, and the federal data protection commissioner's 2024 activity report recommended taking it up again (Bundestag Drucksache 21/120). We found no bill before the Bundestag.

Which lawful basis fits a recorded interview?

With section 26(1) set aside, the options are those in Article 6 GDPR: steps "at the request of the data subject prior to entering into a contract" (Article 6(1)(b)), legitimate interests (Article 6(1)(f)) or consent (Article 6(1)(a)). Interviewing and note-taking can fit (b) or (f), but a full recording is hard to call necessary when notes would do. Because section 201 StGB requires the candidate's agreement anyway, consent can also serve as the data protection basis. If you do, it must be freely given and as easy to withdraw as to give; section 26(2) BDSG points to the dependency between the parties when judging whether consent is voluntary, which is why a refusal must have no consequences. The BAG's 2025 ruling addressed section 26(1); keep an eye on how courts treat the rest of the section.

Does the works council have a say?

In a business with a works council (Betriebsrat), three provisions of the Works Constitution Act (BetrVG) are likely to come up when you introduce a recording, transcription or scoring tool for interviews:

• Section 87(1) no. 6: the works council co-determines "the introduction and use of technical devices that are designed to monitor the behavior or performance of employees" (s.87 BetrVG, our translation). Candidates are not employees for this purpose, but interviewers are, and a tool that records or analyzes interviews also captures their conduct.
• Section 94: personnel questionnaires and "general assessment principles" need the works council's consent (s.94). Standard interview scorecards can fall here.
• Section 95: selection guidelines for hiring need its consent, and subsection (2a) says this applies "also when artificial intelligence is used" in drawing them up (s.95).

In practice this means a works agreement (Betriebsvereinbarung) covering which interviews are recorded, who can access recordings, how long they are kept and that they are not used to evaluate interviewers. Where co-determination applies and the parties cannot agree, the conciliation board (Einigungsstelle) decides (s.87(2)), so plan the negotiation before the launch date. If the tool scores or ranks candidates, also check the EU AI Act's high-risk rules; see the EU AI Act for recruiting.

How long can you keep recordings and transcripts?

No statute fixes a period, but German discrimination law sets the reference point. A rejected applicant must assert a claim under the General Equal Treatment Act (AGG) in writing "within a period of two months," starting from receipt of the rejection (s.15(4) AGG), and must then sue within three months of asserting it (s.61b ArbGG). Setting a period that covers those deadlines, writing down why, and deleting afterwards ties retention to a documented reason. Keeping recordings longer, for example for a talent pool, needs its own basis, usually separate consent.

A consent line for German interviews

Adapt this and read it before anything is captured:

Bevor wir beginnen: Ich würde unser Gespräch gern [aufzeichnen /
mit einer Software transkribieren], damit ich mich ganz auf Sie
konzentrieren kann und Ihre Antworten korrekt festhalte. Das
[Aufnahme / Transkript] nutzen wir nur für dieses Auswahlverfahren
und löschen es [Frist] nach Abschluss. Sind Sie damit einverstanden?
Sie können auch ablehnen oder jederzeit unterbrechen; das hat keinen
Einfluss auf Ihre Bewerbung.

(Before we start: I'd like to [record / transcribe with software] our
conversation so I can focus on you and capture your answers accurately.
We use the [recording / transcript] only for this selection process
and delete it [period] after it ends. Do you agree? You can say no or
pause at any time; it won't affect your application.)

Put the same information in writing in the interview invitation and your candidate privacy notice; our GDPR candidate privacy notice template has the Article 13 fields. Tools can help with the mechanics: Interview Signal, for example, shows a read-aloud consent line and has a one-click pause, and it does not keep audio after transcription, but the transcript is still personal data and the consent rules above still apply. More wording options are in our interview recording consent script.

Checklist before you record interviews in Germany

• Candidate's consent obtained before recording or live transcription starts, and noted.
• A real alternative offered, with no consequence for refusing or pausing.
• Lawful basis under Article 6 GDPR chosen and documented; no reliance on section 26(1) BDSG.
• Privacy notice and invitation explain the recording, its purpose, access and deletion date.
• Works council involved, and a works agreement in place, before the tool is introduced.
• Recordings kept only as long as needed to defend AGG claims, then deleted on schedule.
• Scoring or ranking features reviewed against the EU AI Act.