No nude pictures as keepsakes

Where nude pictures or other intimate image and video recordings are created during an intimate romantic relationship, these must be deleted upon request of the ex-partner following the end of the relationship. This has now also been confirmed by the BGH.

The plaintiff was the ex-partner of a photographer, who had had numerous nude pictures and video recordings of herself taken during the intimate romantic relationship that had since ended. These included, amongst others, intimate recordings showing her partially clothed and unclothed before, during and after sexual intercourse.

Some of the images were self-created pictures that she had handed over to her partner in digital form. After the photographer had already undertaken at first instance not to make the photos accessible to third parties or the public, his ex-partner also sought the deletion of all intimate photos and video recordings. Both in the first and in the appellate instance the victim was successful (see here). The photographer's appeal was dismissed by the BGH.

Court's decision on nude pictures of the ex

By judgment of 13.10.2015 – Az. VI ZR 271/14 the BGH confirmed the judgment of the OLG Koblenz vom 20.05.2014 – Az. 3 U 1288/13 .

Like the lower courts, the BGH also derived the claim for deletion from the infringement of the general right of personality of the person depicted. In the case at hand, the person depicted was affected in the protected sphere of the general right of personality and – linked with this – her absolutely protected sphere of privacy. For the recordings in question show her in the most intimate situations.

Beyond the mere infringement of the protected sphere, there is an unlawful interference with the general right of personality of the person depicted – in its function of protecting likeness and sphere of privacy – in that the photographer continues to exercise control over the recordings showing the ex-lover against her will.

The right to respect for private and intimate life specifically protects the right not to have to disclose sexual relations with a partner, but rather to be able to determine for oneself whether, in what form and to whom insight into the sphere of intimacy and one's own sexual life is granted.

The victim experiences through the photographer's control over the recordings, which persist against her will and visibly document the opening of her intimate sphere, a being at the mercy and an external determination by which she is injured in the inviolable core area of her right of personality.

To the extent that the person depicted granted the photographer insight into her sphere of intimacy, this consent was however limited to the duration of the relationship.

Furthermore, the BGH saw neither an interference with the photographer's freedom to pursue his profession and freedom of art nor his ideational interest in keeping the images to preserve memories of the shared relationship.

Conclusion

According to the BGH's view as well, consent to intimate recordings should only apply for the duration of the relationship. After its termination, the ex-partner may in any case not retain the intimate recordings, in particular nude pictures, against the will of the other. This applies even if he does not intend to make them available to third parties or the public. In this respect, both the originals and all (digital) copies must be deleted.