A court in Germany published a decision this week stating that a man must delete nude pictures and erotic videos depicting his former lover. The Higher Regional Court of Koblenz published a decision which confirmed the personality right in Germany outweighed the property right to pictures and videos to the extent the materials contained intimate content. The court said the required consent to possess the intimate pictures and videos ended when the relationship ended. The court order to delete materials depicting the woman did not include anything in which she remained clothed. The court surmised that the non-intimate photos and videos did not compromise the personality rights of the woman to the same extent as the intimate materials.
The court based its decision on Articles 1(1) and 2(1) of the German Constitution. Article 1(1) provides for the inviolability of human dignity. Article 2(1) states that “[e]very person shall have the right to free development of his personality” so long as the rights of others are not violated. The court interpreted the personality right to include an “intimate sphere” subject to protection. The protection afforded to the intimate sphere was more important than any copyright protection or rights afforded to the ex-lover photographer. The items ordered for deletion were done in the photographer’s personal capacity and not as part of his business. Article 12 of the German Constitution protects occupational freedom and photos or videos done in connection with the defendant’s business might have made the decision more difficult if the court was forced to decide which constitutional protection was more important.
In this instance, the photographer defendant took many photos and videos of his former lover and she asked the German court to order that the man must delete the materials, including those in which she was nude and those containing erotic materials. The woman said she consented to all the photos and videos at the time, but she said she did not believe he should keep any materials depicting her after the relationship ended. The case in Germany landed in court because the former lover refused to delete the materials showing the plaintiff.
The case was unusual from most situations because the former lover did not post any of the materials online, he merely refused to delete them from his computer. Most legal cases involve posting nude materials online without the permission of the subject. When items are online, the person posting them can only remove them from the website first containing the materials. Once someone else downloads or shares the materials they cannot be pulled back. Those types of cases generally involve a request for a money award for damages. The plaintiff in the German case was not requesting damages because she had not yet been harmed by any broadcast or posting of the photos and videos.
In Germany, the recent court decision provides that protection of an individual’s personality rights must include a requirement for a former lover to delete nude photos and videos, even if made with the individual’s consent at the time. The court decided that the consent expired when the relationship ended and all intimate materials must be deleted.
By William Costolo