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Court: Your ex must delete sex photos if asked

Ben Knight
December 22, 2015

Germany's top court has ruled that people can demand the deletion of intimate pictures once a relationship is over. Privacy lawyers say the verdict has established the vital principle that consent can be withdrawn.

Symbolbild Internet Porno
Image: picture-alliance/dpa

Germany's highest court has ruled that people have the right to force their ex-lovers to delete naked pictures of them. The Bundesgerichtshof (BGH) confirmed a ruling made in October by a court in Koblenz, western Germany, on the case of a man who had taken several intimate photos of a woman during their affair.

According to the ruling published on Monday, the pictures showed the woman naked both "during and after sexual intercourse." She had also taken some of the pictures herself and given them to the man, who was a professional photographer.

But the court ruled that even though she had consented to the pictures being taken, and that they had "indisputably been made for private use, and not for publication or dissemination," the photographer still did not have the right to keep them.

"The consent of the plaintiff to create the photos in question does not rule out withdrawing that consent in the future," the court ruling said. Nor did the man's job give him the right to keep the pictures - since they were taken in the context of a personal relationship, the BGH said that deleting the pictures neither infringed on his artistic freedom or his freedom to carry out his profession. "Artistic freedom is not guaranteed without boundaries either," the ruling added.

Deutschland BGH urteilt im Implantaten Prozess
The BGH upheld a regional court's verdictImage: picture-alliance/dpa/U. Deck

Holiday pictures allowed

But the plaintiff's suit was not entirely successful. The court denied her demand to force her former lover to delete all photos taken of her. "Photos that show the plaintiff clothed in an everyday or holiday situation are a tangent to general personal rights, and are less ... damaging to the reputation of the plaintiff for third parties," the court said.

The court made clear which pictures the defendant would have to delete: any showing her naked, semi-naked or with her intimate areas exposed, in her underwear, or "before, during, or after sexual intercourse."

Lawyers welcomed the ruling as a useful streamlining of what has become an increasingly common lawsuit. "It used to be possible to retract permission, once you've become older and richer, but it was very difficult," said Christian Solmecke, an attorney who has dealt with a number of privacy rights cases. "Now the BGH has set up something like a common rule: if you're in a relationship and take intimate pictures, which a lot of people apparently do, especially younger people, then the consent can be given, but it can also be withdrawn the moment the relationship is over."

'Revenge porn' significance

According to lawyers, the ruling offers important new legal security to anyone who acquiesces in taking intimate pictures during a relationship. But Solmecke argues that the ruling is also significant for more serious "revenge porn" cases, which have also become more common, and which he also worked on. "Sometimes they were manipulated images, sometimes they were secretly recorded images, but sometimes they were also images that had been taken with consent," he told DW. "But once those pictures are on the Internet, then the damage can hardly be stemmed."

Solmecke believes that this is what the federal court ruling was aiming at - to make clear that the very existence of the pictures represents a threat to people's personal rights. "That is a huge help for those affected," he said.

Christian Solmecke, Anwalt für Medienrecht
Solmecke says the ruling has helped simplify privacy lawsuitsImage: picture-alliance/dpa

German courts have been paying more attention to revenge porn cases recently. In August this year, a woman was awarded 15,000 euros ($16,300) by a Düsseldorf court after her brother-in-law posted pornographically photo-shopped images of her on several websites. "That was one of the first verdicts where it came to a claim for damages payments," Solmecke said. The woman's attorneys had asked for 22,000 euros, a claim the court denied because the woman had not received "concrete injury such as telephone calls or people ringing her door" as a result of the dissemination of the images.

Solmecke doubts that in the present case the woman will be able to claim financial compensation beyond the deletion of the images. He also admitted that it would be difficult for authorities to check that the man did not keep secret copies - though if those pictures ever did reemerge, and make it onto the Internet, the man would likely face both fines and damages payments. "Then it would get expensive," said Solmecke.

Nevertheless, revenge porn cases are no longer being considered trivial offenses by German courts: posting intimate images without consent can lead to a criminal conviction - and a prison sentence of up to two years.

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