German Court Rules Ex-Lovers Must Disappear Consensual Previously Taken Nude Pictures Of The Other
from the no-takebacks dept
The aspect of the whole "right to be forgotten" business that's been occurring in Europe that most interests me isn't the legal wranglings or the plethora of unforeseen consequences that will inevitably rear its ugly head. Rather, I'm chiefly interested in the mentality that wanting such legislation suggests. That mentality appears to essentially amount to a request that chosen-actions that might end up being embarrassing should be subject to the whims of he or she that might be embarrassed. While this strikes me as immensely silly, it's not difficult to understand that the unprecedentedly long memory of the internet, as well as its inherent function as an easily-searched index, has made the consequences for embarrassing actions occur on a longer timeline than ever before. Pushing back against that change in the action-response scenario was probably inevitable, even if it's still wrong.
But it isn't just the internet that creates these kinds of scenarios. Digital photography presents a similar problem, with embarrassing images easily stored in perpetuity on hard drives and free from the wear and tear that old developed photos had to endure. And that's how we end up with a German court ruling that ex-lovers who had consented to being photographed nude and/or engaged in sexual activity must be deleted once the relationship ends.
The man, an unnamed photographer, had taken explicit photographs of his partner and made erotic videos with her throughout their relationship. The court heard the woman had consented to all of the material being taken and, in some cases, had taken the photographs herself. When their relationship ended, the woman insisted that all of the images and videos she appeared in be deleted.Let's wade around the legal weeds of German rights for a moment and break this down in laymen's terms. The court has ruled that actions previously agreed to are subject to the wants of that actor once a romantic relationship ends simply because they might embarrass said actor. One might have sympathy with the woman in this specific case, who didn't want her ex-lover to retain nude photos or videos of her in suggestive situations with him. But negating the responsibility for decisions made is going to open up a whole can of worms the court has no business involving itself in. In this case, they ruled that photos of the woman fully-clothed weren't subject to deletion, because they wouldn't "compromise" her. Great, except now define "fully-clothed", explain why the woman's feelings that her in a low-cut t-shirt isn't fully clothed, what ability the court has demonstrated to be a good arbiter of other people's feelings of being compromised, etc.
The court agreed that any privately recorded nude pictures and footage which she appeared in should be deleted or withdrawn on the grounds of personal rights, which are considered higher than the ownership rights of the photographer, the Local has reported.
The point is that when the courts get involved in attempting to protect people from their own feelings, it's going to go wrong. Each and every time. Because the court shouldn't be in this kind of subjective debate. On top of that, alleviating citizens from the consequences of actions they consented to isn't the court's business either. Yes, it's possible that the man may use the photos in questionable ways, but let the court deal with those offenses rather than the vague possibility of an offense. This court instead said the ex had to delete the photos that are his to possess, simply because. Have fun with the resulting caseload, Germany.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: germany, photography, relationships, right to be forgotten
Reader Comments
Subscribe: RSS
View by: Time | Thread
Copyright implications are staggering
What this German ruling suggests is that ex-post-facto a "model" may withdraw all rights, and the photographer may no longer DISTRIBUTE, SELL, OR EVEN POSSESS said material.
That's an about face not only on copyright law, but contract law.
I can't see this being sustainable in the US no matter how whacky (Garcia v Google) we are.
[ link to this | view in chronology ]
Re: Copyright implications are staggering
A model's release is a completely different ball park, and wholly unaffected by that ruling.
And seriously techdirt, you think retaining the most intimate data on someone is not a problem, does not create chilling effects, and in the "vague possibility of an offense" courts can simply put the genie back in the bottle? Did the NSA take over here, or was it just that your blood went...elsewhere when reading about that case?
[ link to this | view in chronology ]
Re: Re: Copyright implications are staggering
BWahahahahahahahahahahahahahahaha
Do you even know what a contract is both historical and by precedent ? Do you know the elements to a contract? Do you understand even the basic concept of a promissory situation and the ramifications that this actually sets in motion for ANYTHING whether it is private or commercial, and this is before we even go into how this affects the doctrine of estoppel which is a HUGE one.
Oh and whether they are nude pics or whatever is absolutely irrelevant to the precedent this idiotic court has now set.
[ link to this | view in chronology ]
Re: Re: Re: Copyright implications are staggering
For those not versed in latin ;) it roughly translates to
'no one is allowed to go against the consequences of their own action(s)'
So the German court has wiped that principle out as well.. charming!
[ link to this | view in chronology ]
Re: Re: Re: Copyright implications are staggering
Now go row your boat out somewhere and complain about the fouling violating NAP :(
PS: And the fact that they are nude pics is very relevant, given the high emphasis German law places on human dignity.
[ link to this | view in chronology ]
Re: Re: Re: Re: Copyright implications are staggering
And I hate to break it to you but in this regards and because this ruling is a huge outlier over anything any other civil law or common law jurisdiction has or ever will rule in this way on; Germany IS the seasteading state here.
As for human dignity? *snorts* I'm sorry.. dignity requires equity for both parties. In this ruling the person who agreed and now post action has taken back there agreement and anywhere else would be estopped from doing so has totally wiped out the equitable nature of the whole thing.
So basically Germany is only concerned with human dignity when it falls within their extreme moralistic, untenable and unequitable standards that no reasonable human (& that includes the UNHR's here too) would ever agree to.
Seems Germany is going down a very slippery slope again without even realising it (though thankfully not pure Fascism this time)
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Copyright implications are staggering
As for human dignity? *snorts* I'm sorry.. dignity requires equity for both parties.
Given that this emphasis was put into the GG to put a stop to gassing minorities, I'd kinda disagree.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Copyright implications are staggering
He said:
(Emphasis added.)
I.e., Germany itself is the outlier. For other things in German law, or even the entirety of the rest of German law, to support this would not undermine that point.
[ link to this | view in chronology ]
Copyright implications aren't staggering
The problem is that this is an implicit contract where the parties never actually worked out the details. Now they disagree what the terms actually were and the court has to decide who is right. Nothing new, unlikely or staggering here.
There are no implications for copyright either. The photographer retains full copyrights, unter German law he cannot acually lose them or transfer them to anybody else anyway. It is now impossible for him to actually exercise those rights, but copyright never guaranteed that.
[ link to this | view in chronology ]
Re: Re: Copyright implications are staggering
Yes, private to those two people. But now, after the fact, that is no longer good enough.
[ link to this | view in chronology ]
Re: Copyright implications are staggering
Is not ex-post-facto the release was given under the condition of the relation, no relation the release is no longer valid.
If a model give a release under the condition of a 10% of the profits of the photograph if the model do not get the money is still valid the release?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
I've seen people attempt this more times than I can count. Good friend of mine had to lawyer up when a crazy ex-girlfriend withdrew consent ex-post-facto and started accusing him of rape... and all the internet SJWs jumped on the case and took her side, too, to make life a living hell for him. You do NOT want to open that floodgate by establishing a legal precedent. There are thousands of crazy exes just waiting for the day they can send their former lovers to jail on rape charges for breaking up with them.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: This is embarassing
[ link to this | view in chronology ]
Let's put it even more simply. The court ruled that they can order you to burn photographs you've taken and owned for years, simply because someone in the photo has decided that how they look in the photo is embarrassing. The sole limitation on this is that they first have to get the court to agree that they look embarrassing in it.
[ link to this | view in chronology ]
Re: So now...
[ link to this | view in chronology ]
The world is a becoming a more dangerous place, because of
those who look on and do nothing. Your government brings up some shitty laws, you better rise up and beat them over their heads so they remember who their masters really are.
WTF, reading so much stuff on here and elsewhere just gets frigging depressing.
[ link to this | view in chronology ]
"Your government" and "you better rise up"
Did you rise up when YOUR government recorded all your phone calls and emails and violated your civil rights?
Did you rise up when YOUR government "brings up shitty laws"?
Because until you're Edward Snowden or Chris Dorner or whomever, you're not "Anonymous Coward" but "HYPOCRITICAL COWARD."
All the best.
E
[ link to this | view in chronology ]
Re: "Your government" and "you better rise up"
I'm not American.
When my country did bring up shitty laws, yes I did stand up, and we changed it.
Stop being an ass and assuming I'm American okay.
There's a reason I'm being anonymous, and you just insulting me by calling me a hypocrite, does nothing constructive to my comment.
Good morning to you.
[ link to this | view in chronology ]
How is that remotely enforceable?
[ link to this | view in chronology ]
Re: How is that remotely enforceable?
In my opinion, if you consented to having naked pictures taken, for "fun" or whatever, you have to live with the consequences. It's a risk you took, like having unprotected sex, then killing the child because you don't like the result.
Oh, wait. We do that. Oops, did I just tweak a nerve?
* Tiptoes off the stage...
[ link to this | view in chronology ]
The new law is barely out the gate and it's already turning into a giant mess, legal and otherwise.
[ link to this | view in chronology ]
Re:
Figures. Freedom never seems to win in these matches.
[ link to this | view in chronology ]
Re:
Then again, the thread already turned to copyright in work for hire and claiming women like to get men arrested for rape because a relationship ended, so, whatevs.
[ link to this | view in chronology ]
Movies
[ link to this | view in chronology ]
Re: Movies
[ link to this | view in chronology ]
Porn industry next
Then it will move on to being seen in movies (naked or not), then to all media, news, journalism, etc., including even the mention of their name...
[ link to this | view in chronology ]
Re: Porn industry next
[ link to this | view in chronology ]
Re: Porn industry next
[ link to this | view in chronology ]
[ link to this | view in chronology ]
What branch of hell are we living in?
Must we commit suicide at 19 because our life is ruined forever?
[ link to this | view in chronology ]
Re: Must we commit suicide at 19 because our life is ruined forever?
Data is not going to just *dissapear* no matter what courts rule.
We have to get used to the idea that we're imperfect beings who do stupid things sometimes. So is everyone else.
That doesn't mean life is ruined. It just means we all need to be a little more tolerant. Especially with ourselves.
[ link to this | view in chronology ]
Re: Re: Must we commit suicide at 19 because our life is ruined forever?
Now when this behavior persists into their 30's and 40's and 50's...or if it escalates into violence...or something like that...okay, then we have a problem. But otherwise: write it off. Otherwise in about 15 years, NOBODY is going to be employable or dateable.
[ link to this | view in chronology ]
Re: Re: Re: Must we commit suicide at 19 because our life is ruined forever?
If no one can meet the 'Standards' of 'Employable' or 'Dateable', Businesses won't simply go out of business and people won't just suddenly let themselves die out because they can't find their perfect match. What is more likely to happen is that the 'Standards' will change to meet the new Generation.
It's as John Fenderson said, if we get to the point where EVERYONE does something stupid when they are young and it can be found on the internet, no one is going to care at all, it's just going to become an accepted norm of the generation.
[ link to this | view in chronology ]
Re:
Nope. In the vast majority of cases, nobody will ever care about the stupid things you did when you were young -- because almost everybody did stupid things when they were young.
If anything, the internet will make people care even less. I could even see people becoming suspicious if they can't find anything indicating youthful indiscretions -- especially if this stupid "right to be forgotten" thing catches on: the lack of such stuff would be an indication that your history was scrubbed, which would be an indication that whatever was there must have been much worse than most other people.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
unintended consequences
On the other hand, if somebody submits them anonymously to a few sites where such pictures are shared (outside this court's jurisdiction), then he can look at them whenever he likes while keeping his hard drive 100% clean.
I doubt the court meant to set up such incentives.
[ link to this | view in chronology ]
Re: unintended consequences
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Wait, what about love letters?
Luckily I don't live in Germany right now so this is hypothetical.
[ link to this | view in chronology ]
Re: Wait, what about love letters?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
I think this is wrong on several levels
Screw Google and their so-called rights.
[ link to this | view in chronology ]
Re: I think this is wrong on several levels
All the stories I've found on this report that the ruling is that the photos must be deleted following the end of the relationship, if the other member of the relationship asks for it. Nothing about public availability is mentioned. Under that standard, yes, "[keep]ing [the] photos in your house" would indeed be prohibited.
None of those stories have included a link to, non-vague summary of, or direct quotes from the original ruling, either, so it's possible that all of them are based on an invalid premise (possibly rooted in one original mistaken or maliciously inaccurate news article). I see no reason to assume that that is the case, however, and the principle underlying Occam's razor would seem to argue against doing so.
(And of course, unless the ruling itself does specifically say something about public searchability, Google has nothing to do with this.)
[ link to this | view in chronology ]
The op is just plain stupid
The pictures were made for their shared personal enjoyment, and not public consumption.
In this world where lots of boyfriends feel they have right to get "even" with the girlfriend, when she decides to leave him, it's no wonder she wanted them back.
I would suggest that the OP leave his highly theoretical ideological horse, and start to move around in the real world. Where women on a daily basis suffer from boyfriends out for revenge.
[ link to this | view in chronology ]
Re: The op is just plain stupid
That is very sexist of you.
We also live in a world where men suffer the same fates from vindictive women. Have you never heard the term "Hell hath no fury like a woman scorned"?
[ link to this | view in chronology ]
Re: The op is just plain stupid
You should read the OP before calling it stupid. It isn't about making the pictures public. It's about requiring one of the parties involved to delete them.
[ link to this | view in chronology ]
Re: The op is just plain stupid
The pictures were made for their shared personal enjoyment, and not public consumption."
True, but completely irrelevant to this story, since nobody mentioned any intention to make the photos public.
"In this world where lots of boyfriends feel they have right to get "even" with the girlfriend, when she decides to leave him, it's no wonder she wanted them back."
No, not "lots of boyfriends", only a very small percentage of them, just like I'm sure a small percentage of girlfriends act in equally bad ways. Nothing in the story suggested this man was one of those few.
"I would suggest that the OP leave his highly theoretical ideological horse, and start to move around in the real world. Where women on a daily basis suffer from boyfriends out for revenge."
I would suggest you read articles thoroughly and engage the critical thinking part of your brain before commenting. I'd also suggest that if you really do personally encounter such acts of revenge on such a regular basis you might want to try meeting better people. I suspect though that you're more likely just a regular consumer of low-quality, sensationalist journalism.
[ link to this | view in chronology ]
Re: Re: Re: Copyright implications are staggering
Do you even know the practical differences between roman law tradition and anglo-saxon law tradition?
"venire contra factum proprium non valet", does not carry the weight you seem to assume.
[ link to this | view in chronology ]
Re: Re: Re: Re: Copyright implications are staggering
Please read my comments in the order they appear that way context is retained and assumptions don't make you look like well.. you know the old saying about assuming.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Copyright implications are staggering
It makes an ass out of u and ming?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re: Re: Re: Re: Copyright implications are staggering
I read both your posts, and they clearly leave the impression that you seem to think that the principles behind anglo-saxon contract law work similarly to roman law tradition.
Your reference to estoppel, and your obvious belief of it's universal relevance is a clear indicator.
Trying to rescue your argument, by turning to simple name-calling and cliechés rather than staying on topic speaks for it self.
Please note the anonymous cowards post:
"The problem is that this is an implicit contract where the parties never actually worked out the details. Now they disagree what the terms actually were and the court has to decide who is right. Nothing new, unlikely or staggering here."
[ link to this | view in chronology ]
[ link to this | view in chronology ]