Publication and Distribution of Intimate & Pornographic Images

The publication of an image is only legally permitted in compliance with specific regulations. One of these provisions is the right to one’s own image, which is a manifestation of the right of personality (Art. 2 (1) in conjunction with Art. 1 (1) GG) and is standardised in §§ 22 et seq. of the Art Copyright Act (KunstUrhG/KUG).

The norms above protect the unwanted publication of images and video recordings. A person thus has the right to decide on the publication and dissemination of a picture in which they can be seen. It should be noted, however, that § 23 KUG lays down some exceptions to this rule.

§ 22 KUG protects against the dissemination of “likenesses”. For this purpose, the person to be seen in the picture, whose consent to publication or dissemination has not been given, must be recognisable. This is already the case if they would be recognised by a person merely known to them. Accordingly, the person’s face doesn’t need to be visible in the image. Instead, it is sufficient if the person is recognisable by their posture, an external feature or the like.

The publication of a pornographic photograph must be examined more strictly from a legal point of view. This is because the identifying features described above are not required here. In principle, higher requirements are to be placed on the permissible dissemination of such an image.

Do you fear the publication of an intimate image, or has such an image already been put online? Moreover, have you not consented to the dissemination of the photograph? In the following, you will learn which legal countermeasures are possible in such a case.

Civil Claims in Germany

Civil claims can be made against the perpetrator as well as against the operator of the platform on which the picture or video is published.

Do you know the perpetrator? Now there is the possibility of a claim for injunctive relief or removal according to §§ 1004 para. 1 sentence 2 BGB analogously, § 823 para. 2 BGB in conjunction with §§ 22, 23 Kunsturhebergesetz (KUG). The violation of the right of personality enables the victim to act against the image’s disseminator in this way. This is to prevent either the publication of the recording or its further dissemination.

However, removing the image or video is not sufficient if it has already been published. Since there could be a risk of repeated dissemination, it is also possible for you (as the victim) to demand a punishable injunction from the disseminator of the recordings. This has the consequence that the perpetrator would have to pay a fine to the injured person (you) in case of a renewed publication.

Furthermore, the claim can be directed against the platform operator on which the recording was published. The claim can be enforced by a warning or an application for an interim injunction (§§ 936, 925 ZPO).

The aggrieved party may also assert a claim for damages (§ 823 para. 2 BGB in conjunction with §§ 22, 23 KUG) based on damages incurred by them (e.g. extrajudicial lawyer’s fees). If there is a claim for damages, the aggrieved person can also claim compensation for pain and suffering in the event of a severe violation of the right of personality.

In addition, there is a claim for deletion. If you have sent an intimate picture or video to your partner in a relationship or they have made one of you, and you are now separated, you can demand the deletion of the intimate recording. This is possible if you consented to the recording at the time it was made, but only for the period of the intimate relationship.

Whether the ex-partner now possesses or publishes the recording is irrelevant concerning the claim for deletion because deletion can be demanded even in the case of mere possession.

Criminal Law Claims in Germany

Victims can also make criminal claims. By filing a criminal complaint with the police or the public prosecutor’s office, action can be taken against the publication or dissemination of intimate recordings. § 33 KUG stipulates that anyone who publishes or disseminates a likeness in contravention of §§ 22 and 23 KUG is liable to a custodial sentence not exceeding one year or a monetary penalty.

Criminal liability is also possible under § 201a German Criminal Code. The norm mentioned above from the Art Copyright Act (KUG) only criminalises the dissemination and publication of an intimate image. § 201a StGB protects against violating the most personal sphere of life and individual rights through image recordings. Accordingly, the norm already punishes making an intimate image recording without consent.

In addition, § 184b and 184c German Criminal Code must be considered. According to the aforementioned norms, the distribution, acquisition and possession of child and youth pornographic content are punishable. Pornography is defined as content that primarily serves to arouse the viewer sexually. The punishability of a person depends on the age of the child or young person depicted intimately.

Also, according to § 184 German Criminal Code, a person who distributes pornographic content is liable to prosecution. The age of the recipient is irrelevant here. If a person receives a pornographic image without having given their prior consent, this constitutes a criminal offence.

Have you been sent an inappropriate picture, or do you fear the distribution of an intimate image in which you can be seen? Our lawyers can help you. Please, do not hesitate to contact us directly via our online form or call us.