In a judgment dated 20 May 2014 (Az 3 U 1288/13), the Third Civil Senate of Superior District Court of Koblenz (Oberlandesgericht) upheld a decision of the District Court (Landgericht) requiring one party to a former relationship to delete intimate images of his former partner but refusing a similar order in relation to “everyday” photographs and videos. The Judgment is available in German here. There is also a press release from the Court.
The claimant and the defendant formerly had an intimate relationship. During the relationship the defendant, who is a photographer, took numerous photographs and videos of the claimant. These included intimate photographs and videos, including photographs taken during and after intercourse.
The claimant had agreed to the intimate photographs and videos. However, after the end of the relationship the defendant claimant asked the defendant to delete all digital images and video footage on which she appeared. He had sent emails with intimate images to her work email address and after she had blocked his emails sent intimate images from other email addresses. On 7 June 2013, the Federal Court granted the claimant an injunction prohibiting the defendant from sending emails to her.
Before the District Court the defendant agreed not to send further emails and not to disclose intimate images or video of the claimant to any third party.
The District Court ordered the defendant to delete photographs or video showing the claimant
- in an unclothed state
- in a partially unclothed state, so far as the claimant’s breast or genital area could be seen;
- dressed wholly or in part in underwear
- before during or after sexual intercourse
It held that the claimant was justified, as a result of her personality rights, in revoking her consent to the reproduction of these images. The images showing the claimant in intimate situations “were related to the core areas of her personality rights for which special protection was necessary“. The photographs or videos were likely to affect the reputation of the claimant and if they remained in the hands of the defendant there remained a possibility.
The Court did not, however, order the deletion of photographs of the claimant in everyday clothes and on holiday. These touched on her personality rights to a lesser extent and were less likely to affect her reputation with third parties. It was, therefore, reasonable that they remained in the defendant’s possession.
On appeal, the Third Senate held that that consent which had been given by the claimant could be revoked in limited circumstances. The binding effect of the consent once given could be in conflict with a person’s general personality rights
The Court considered the defendant’s arguments that the claim for deletion were an interference with his right to artistic freedom or a “confiscatory interference” with his property rights.
However, artistic freedom had to be balanced against the applicant’s personality rights. The defendant had conceded that he could not publish the images to the third parties. Although he had argued that they were secured from unauthorised access, there were grounds to doubt whether he had dealt with them with utmost care in the past. He had forwarded confidential emails to the claimant containing intimate images to a company email address giving rise to the risk of unauthorised access by third parties. As a result, the order for deletion was upheld.
The order refusing deletion of non-intimate images was also upheld. The right to privacy of the defendant was affected by such images to a lesser degree and she had consented to their creation and use.