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German Court Orders Man To Destroy Naked Images of Ex-Partner (bbc.com)
AmiMoJo sends this report from the BBC: Germany's highest court has ordered a man to destroy intimate photos and videos of his ex-partner because they violate her right to privacy. The Federal Court said the man, a photographer, should no longer possess naked photos and sex tapes, even if he had no intention of sharing them. The woman had originally agreed to the images but this consent stopped when the relationship ended, the court said. Germany has some of the strictest privacy laws in Europe.
How would the court ever know if he has fully complied with the order?!
This is insane! Besides an enforcement issue (Will the government check this man's belongings to make sure there are no backups?) The photos are his property as he is the photographer. This is a disturbing ruling. Now the subject gets to decide on how the artist portrays it. I modeled nude for a painting class a decade ago, can I have all these paintings destroyed?
Yep. Consent this; intimate that... this ruling is going to come back to bite a lot of people in the ass. And just wait until they try figuring out what the burden of proof is for "destroy."
Now there's only 20 billion naked chick pics left on the Internet. We need more Porn now!
Harrison's Postulate - "For every action there is an equal and opposite criticism"
So if they did the photo's for art, wouldn't both of them have intellectual property rights?
Yea, im bored stuck at work...
Why does a photographer need proof of commercial compensation in order for a work to have aesthetic value?
If a work has aesthetic value and all participants at the time it was created agreed to its creation (arguably a form of verbal contract) then what gives any party, other than the photographer as the creator of the content, any special rights over the content? The subject might have rights to the content if used for public exhibition or commercial purposes, but I don't see any reason why the subject, if of legal age and in a position to consent to having an image taken, should have the right to revoke that consent at a later time such that it compels the artist in question to destroy their work.
I will say this much, lots of people are bloody stupid and don't understand that they absolutely should not consent to having photos taken of them in the nude or in sexual congress unless they've fully considered both the ramifications of how they feel about those pictures potentially being seen by absolutely everyone and how this could impact their lives down the road, but that's the choice of the subject that willfully puts themselves into that position.
Do not look into laser with remaining eye.
To be fair to him: this is largely a theoretical issue.
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She waived her right to privacy when she agreed to the production of the pictures/videos. He however would be out of line and infringing on her privacy were he to share the media outside the two of them, which he apparently did.
APK likes to ask for responses to the same things over and over. Maybe he just likes the responses?
There's a reason most contracts and licenses use the word "irrevocable", because by default I can change my mind. The court found that even though he took the pictures with her permission, she retains personal integrity rights governing possession and use of the pictures that shows intimate areas and sexual activity. Like you could show ordinary photos of your ex-gf to your friends without consent, but not the sex photos. And hypothetically that would be an ongoing consent that could be given or revoked at any time. The German court found those rights extend to possession, if you possess intimate material of someone you must delete them on request, unless you have an explicit agreement to the contrary.
It should be noted that some of these sex photos had found their way to the woman's husband through unknown third parties and the court goes far to hint that if he were to retain possession it is not certain the remaining material would be treated with the appropriate care to protect against unauthorized viewing. In short, they can't prove he maliciously send or spread those pictures but they're going to take away his means to do it again. Then again if you suspect they might be spread illegally well you should also suspect a copy will be kept illegally, but it adds legal ammo. Honestly I think it's a very reasonable and narrow ruling, it only applies if the following three conditions are met:
1) They are made informally, no written terms
2) They're intimate in nature
3) The subject has requested it
Live today, because you never know what tomorrow brings
Before declaring a ruling contradictory, you should first read it; you can find it here. I recommend you read it in full.
In particular, the court didn't judge that the taking of the pictures itself was illegal in any way, after all she did consent to the pictures being taken within the context of their relationship. However, she did not consent to the pictures being taken for any other purpose, in particular, the pictures weren't meant for publication. Since she still holds personality rights over the pictures, consent can potentially be withdrawn. (This is where pictures differ from your sex analogy: after sex is over, it's done, but after pictures are taken you still hold certain personality rights over the pictures, at least in Germany.) The court concedes that it isn't always entirely clear where to draw the line, but because the photographer had publicised pictures without consent before, and because there is reasonable doubt that the photographer would take proper care to shield the pictures from third parties, and because some of the pictures were nude and/or sex pictures, and because intimate pictures can be used to hold some measure of control over someone, and because the consent was given in the context of a relationship which since has ended, in this case consent could be withdrawn, albeit just for the nude and/or sex pictures, not for the regular clothed ones. Therefore the court ordered the pictures to be destroyed.
The ruling doesn't say that taking these pictures is retroactively illegal (such a concept doesn't really exist in German law) nor that keeping the pictures until now was unlawful (although publicising them may/would have been) but not obeying the order to destroy them would be (it would be contempt of court). Of course, the court cannot easily check if its order has been executed completely, but that isn't unique to this situation. Should the photographer later leak pictures that were supposed to be destroyed, he could be charged not just with unjust publication but also for disobeying a direct order from a federal court.
This post is of course a rough summary, for the details you'll have to read the judgement yourself. As a final note, it's important to consider the societal backdrop against which this all happens. People are nowadays less hesitant to share nudes with their partners, mainly because they share pictures of anything and everything, but also revenge porn is on the rise, and the potential for blackmail and psychological manipulation is tremendous. The law will have to adapt to this new reality and clinging to the simplistic view that pictures are just property aren't likely to do society any good.
She waived her right to privacy when she agreed to the production of the pictures/videos. He however would be out of line and infringing on her privacy were he to share the media outside the two of them, which he apparently did.
Some rights cannot be waived. And it should be obvious that the only permission that is given in that situation is for the private use as long as both sides agree.
It would be different if she had given permission to a random person, but it's obvious that permission was given based on having a relationship to the photographer, and once that relationship is gone, the permission is gone.
Just yesterday I gave permission to my garage to drive my car (to find some problem with the car). It's obvious that this permission is time limited for as long as it takes them to find the fault. And not longer.