Peter A Clarke

Revenge porn is one of the stories of 2015 although it has been a phenomena for a number of years now.  With technological improvement, in particular smart devices become more sophisticated together with the sharing imperative that many from Gen X down seem to live by the abuse of intimate photographs and videos has been on the increase.  Or at least appears to have.  There has been legislative responses to sexting, (here, here and here) and a bit of political posturing on banning revenge porn (here and here).  The Supreme court of West Australia in Wilson v Ferguson found against the defendant on a blatant and cruel act of revenge porn, posting photographs and videos of an ex partner on Facebook.  But the laws coverage, particularly in the civil area is both patchy and generally weak.  There is no statutory right of privacy and the courts here are unlikely to follow the more assertive approach by the UK courts in finding there is a tort of privacy.

The BBC reports in Sex tape row: German court orders man to destroy naked images that the German Federal Court has ordered a man to destroy intimate photographs of his ex partner even if he had no intention of sharing them because she had a right to privacy.

The article provides:

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.

The Federal Court was called upon to rule in a dispute between a former couple, who were arguing over whether or not the man should delete intimate photos and videos.

In its ruling (in German), the court said everyone had the right to decide whether to grant insight into their sex life – including to whom they grant permission and in what form.

It said that by retaining the images, the photographer had a certain “manipulative power” over his ex-lover.

He should no longer have rights to the photos and videos once the relationship had ended, it concluded.

It is not clear how the ruling will be enforced.

What counts as ‘intimate’?

Recent cases of naked images being leaked online have sparked a debate about victims’ rights, with some countries making so-called “revenge porn” a criminal offence.

Commenting on the Federal Court ruling, German lawyer Katja Weber said two important points had to be established in such cases:

• Which photos are to be defined as “intimate”
• Whether the original consent for having the pictures taken was restricted to the duration of the relationship.

She said “intimate” photos were not exclusively those taken before, during or after sex. However, “that was the type of photo considered in this case”, she said.

“One can imagine plenty of situations where, during a relationship, compromising photos might be taken.

“Even, for instance, photos showing one’s partner minus some clothes can be categorised as intimate shots, which should therefore be deleted.”

Consent for having the pictures taken does not have to be written – it can be verbal, the lawyer added.

If someone maintains that their ex-partner was willing for the photos to be used after the end of the relationship, that consent would still have to be proven, according to the new ruling, Ms Weber argued.