No love lost? - the right to have "intimate" photographs deleted

An intriguing little personality rights ("privacy ") case has this week been decided by the Higher Regional Court of Koblenz (Germany) in relation to "intimate" photos and videos that had been taken by the defendant (a photographer and ex-partner) of the claimant during a personal relationship (case reference 3 U 1288/13).

What had happened ? During happier days, the defendant had taken numerous photographs of his then-girlfriend, including photos and videos of an erotic nature. All was well while the relationship lasted and the claimant had consented to the taking of these photographs, including some nude photographs ; indeed she even taken some of them herself. Things did - perhaps not surprisingly - change after the couple separated. The ex-girlfriend changed her mind and demanded that her former boyfriend delete all digital photos and videos on which she could be seen: intimate photos and videos as well as those showing her in "normal" everyday situations. The defendant objected and the matter went to court.

The Higher Regional Court only partially agreed with the claimant. The judges - no doubt after a detailed review of the evidence provided - took the view that any consent to the possession of the "intimate" photos/videos was usually connected to the existence of the (personal) relationship and could therefore be revoked after its end.

"Everyday type" photographs, however, did not have to be deleted or destroyed, said the judges. In relation to photographs that showed the claimant in normal, everyday situations (i.e. not in the nude...) , the court could not see a personality right infringement arguing that the claimant's reputation would not be lowered in the view of third parties. However, things were different with regard to erotic photographs. All previously provided consent to the possession and use of such nude pictures /videos could be revoked because intimate photographs belonged to the core of the personality right ("intimate sphere") as protected by the German Constitution under Articles 1 (1) and 2 (1) . When balancing the claimant 's personality right with the defendant's property rights in the photographs , the the claimant's rights outweighed those of the defendant. Bearing in mind that the photos were of a private rather than a professional nature, i.e. not taken as part of the defendant's business, his professional freedom (also protected as a basic human right under the German constitution in Article 12) was not a adversely affected.