Revenge pornography – What to do if intimate images are distributed without your consent?

In the digital age, privacy protection is of utmost importance. Personal data and images can be quickly disseminated with just a click or by uploading them via smartphone. Once intimate content is online, it often quickly falls into the wrong hands and spreads further – which can lead to serious data protection violations and a devaluation of personal rights. It is particularly serious when private, intimate images are published without the consent of the person concerned – an increasingly common phenomenon known as revenge porn. In this text, I would like to inform you about the legal situation in Germany and show you, as a victim, practical options for action.

Revenge pornography, also known as "revenge porn," refers to the unauthorized publication or distribution of pornographic content of a person without their consent. This is often carried out as an act of revenge by a former partner. The forms of this violation range from the sharing of private messages and photos to sexually explicit videos. Perpetrators primarily use social media, forums, and specialized platforms to cause maximum damage or even achieve financial gain by selling the images and videos. In many cases, publication is also used as blackmail or a means of pressure.

Victims of revenge pornography can take both criminal and civil action against the unauthorized publication. Depending on the specific case, various criminal offenses may apply, such as Section 201a of the German Criminal Code (violation of the most private sphere through image recording), Section 184k of the German Criminal Code (violation of the intimate sphere through image recording), or Section 238 of the German Criminal Code (stalking).

According to Section 201a of the German Criminal Code (StGB), the unauthorized creation, transmission, or making available of images that concern a person's most private life is punishable. This means that the creation or distribution of intimate images or videos without the consent of the person concerned can be punished with a prison sentence of up to two years or a fine.

• Paragraph 1 protects images of persons who are in a particularly protected space such as a home.
• Paragraph 2 extends the protection and criminalises the unauthorized disclosure of such recordings.

Since January 1, 2021, Section 184k of the German Criminal Code (StGB) has protected against the secret production or use of images depicting persons in an embarrassing or intimate pose – regardless of the location. This provision closes a loophole that specifically concerns the intimate area.

In cases of repeated and harassing behavior that results in a significant impairment of the victim's quality of life through the distribution of intimate images, Section 238 of the German Criminal Code (Stalking) may also apply. This provision was expanded on October 1, 2021, to also include repeated distribution of intimate images as a stalking offense.

Those affected can also take legal action under civil law. They can invoke their general right of personality, which is derived from Articles 1 and 2 of the Basic Law. The KunstUrhG (Art Copyright Act) can also be used as a basis. According to Section 22 of the KunstUrhG, images may only be distributed with the consent of the person depicted. Those affected can also assert an injunction to prevent further distribution and to obtain the deletion of the content.

In addition, there is the possibility of claiming damages and, if applicable, monetary compensation. Both material and immaterial damages are recoverable. The amount of compensation is determined on a case-by-case basis and takes into account the severity of the infringement and the individual circumstances.

Victims of revenge pornography do not have to remain helpless – there are both criminal and civil law options to defend themselves.

To effectively combat revenge pornography, you should follow these steps:

1. Immediate action upon discovery

   • Documentation: If you are confronted with revenge pornography, you should preserve all relevant evidence. This includes screenshots of websites, URLs, and any communication that may serve as proof of unauthorized publication.
   • Report to platforms: Many social networks and websites have policies to combat revenge pornography and offer a reporting feature for inappropriate content. Use these promptly to request removal of the material in question.

2. Take legal action

   • To file charges: Check whether you can take legal action. It's advisable to seek legal advice in a timely manner.
   • Consult a lawyer: Consult an attorney to enforce your claims for injunctive relief and damages. An experienced attorney can assist you in legally asserting and drafting appropriate claims.

3. Contact with support networks

   • Visit counseling centers: There are numerous counseling centers and organizations specializing in supporting victims of cybercrime, including revenge pornography. These centers offer not only legal advice but also psychological support and practical assistance to mitigate the effects of the crime and plan next steps.

• Kiel Regional Court (judgment of 27 April 2006, Ref. No.: 4 O 251/05): In one case, a woman's ex-partner published intimate pictures of her, along with her full name, address, and phone number. This created the impression that she was offering sexual services. As a result, she received indecent offers. The court awarded her €25,000 in damages.

• Higher Regional Court of Hamm (judgment of 03.03.1997, Ref.: 3 U 132/96): An amateur model had taken nude photos in a photo studio. One of the photographer's apprentices stole some of the images and sold them to a magazine with a fake modeling contract. One image later appeared on the cover of a magazine with an offensive title. The Higher Regional Court of Hamm ruled that the model was entitled to damages of 20,000 DM, as editors are required to conduct particularly thorough research when using nude photos.

• Hamburg Regional Court (judgment of 20 July 2001, Ref. No.: 324 O 68/01): The Hamburg Regional Court ruled that celebrities are entitled to compensation of 150,000 DM for the publication of paparazzi nude photos.

• Frankfurt Regional Court (judgment of 20 May 2014, Ref. No.: 2-03 O 189/13): In a case in which nude pictures of a minor were unintentionally copied and distributed to classmates, the court ruled that the person who distributed them had to pay 1,000 euros in damages.

• Berlin Regional Court (judgment of 7 October 2014, Ref. No.: 27 O 166/14): In another case, the Berlin Regional Court ruled that the unauthorized publication of a private sex video on the Internet after a separation justified compensation of 15,000 euros.

• Düsseldorf Regional Court (judgment of 16 November 2011, Ref. No.: 12 O 438/10): In a case involving individuals posing nude as part of an art project, the Düsseldorf Regional Court ruled that even in such cases, images may not be published in public programs without the consent of the individuals involved. The person responsible was ordered to pay €5,000 in damages.

• Higher Regional Court of Hamm (judgment of 20 February 2017, Ref. No.: 3 U 138/15): A young woman whose photo from a private situation was shared online received only 7,000 euros in compensation. This represents a reduction of the original award.

• Higher Regional Court of Oldenburg (decision of 5 March 2018, Ref. No.: 13 U 70/17): In a recent case, a woman whose intimate photos were forwarded by a former friend was awarded only 500 euros in damages because she herself had contributed to the distribution by sending the images.

• Higher Regional Court of Oldenburg (judgment of 11 August 2015, Ref. No.: 13 U 25/15): A man who superimposed his ex-partner's face onto pornographic images and posted them online was sentenced to pay €15,000 in damages. The amount had been set even higher in the first instance.