Protecting Intimacy, Preventing Revenge and Balancing Fundamental Rights

Recent court decisions in Germany and Israel seem to indicate a growing recognition of the importance of personal privacy as well as the potential(s) for damage to privacy as a result of disclosure of intimate images and/or details.

In Israel, the Supreme Court just upheld the 2011 decision in Plonit vs. Ploni and Almonit.  The case involved a challenge to the publication of a book, filed against both the author of the book and its publishers.  The book detailed a relationship with a female student and was written by the male with whom she had previously had a relationship.  In requesting that the publication be recalled, she claimed that her private and public world were described in graphic detail, including her body, emotions, weaknesses, conscience, activities and preferences for sexual stimulation.  The judge agreed that whether or not the book was classified as fiction, the plaintiff was sufficiently identifiable that the book was an invasion of privacy.  Naming both privacy and free speech to be fundamental rights, the judge felt that the appropriate balance between literary freedom and privacy, in this case, justified preventing the book from being published as well as paying the plaintiff damages. 

While private ownership of images rather than publication of text was at issue in Germany, the court struck a similar balance, at least in intimate context(s).  At the end of a relationship with a professional photographer, the woman plaintiff requested that he delete photographs and videos of her taken during their relationship.  When he refused, she went to court asking that they enforce her request.  A variety of images were at issue, both erotic and non-erotic.  It was unquestioned that they had all been taken with consent.  Nevertheless, the court determined that any consent given to possession of the images was withdrawn at the end of the relationship.  Given that and based on a right to image, and the recognition that intimate images go to the heart of the personality right, the court found that her ex had an obligation to delete upon request all nude or otherwise erotic images.  Images characterized as everyday or otherwise unlikely to compromise her privacy were excluded by the order and did not have to be deleted on request. 

With the EU recognizing a “right to be forgotten”), the media trumpeted the German decision as Germany upholding a right to one’s own image, the media claimed a victory for those victimized by revenge porn.  Viktor Mayer-Schönberger notes that the German case is a particular manifestation of European doctrine rather than an iteration of the right to be forgotten.  "But what can be said is that is that these two rulings may make more and more people aware of their personal rights in the digital sphere. At the very least, it should embolden future claimants who pro-actively want to prevent revenge porn."