When couples split up, it is customary for at least one party to feel aggrieved, and so it is common for that person to demand the return of some items. The demands go something like this: You are leaving me, fine – return the bracelet I gave you on Santorini, and the notebook we have been sharing to put our romantic feelings in. I no longer share in it, so I don't give my permission to read my intimate thoughts. You don't want me, so you can't have me: no trace of me. I especially want back the photos. Not all of them, just the ones of me in my bikini. And out of my bikini. Those in particular represent a kind of ownership of me, and you may not enjoy my body any more. You have no more access to me. Give me back the photos.
These days, the demand is more likely to be delete, not give back, but the scenario occurred long before the digital age. And it has always been a tricky question. You gave me the bracelet, right? So it's mine now. And the love note you wrote me: Maybe you don't mean it any more, but you did send it to me; now, it is a part of and a record of my life.
The bedroom photos are always a particularly troubled area. No release form is ever signed. But release forms serve only to give permission to publish photos; they have hitherto been unnecessary for the simple keeping of photos. The party who took the photos is likely to say: I took the photos with my camera and your consent. They are a history of my life as much as of yours. I can promise you I won't show them to anyone, sure. But I don't have to give them back, any more than I have to give back the snapshot of us at Linda's wedding, which has equal romantic resonance for us, or the one of you drying your hair in a big shirt at the cottage, which is easily as erotic as any of the naked ones.
The person photographed has a different feeling about that. She says my naked body is different. It is particularly vulnerable. And the Internet has changed everything. I can withdraw my consent to have it looked at.
A German court has agreed with this recently. In Koblenz, a couple split up and the woman asked the man to delete nude photos of her and he refused; she sought legal pressure. The regional court judge ruled that the man must delete any unclothed pictures of her. The clothed ones he can keep.
The decision is attracting wide attention because it takes a clear stance on the issue, and will likely set a trend in how we consider it.
The case has been largely discussed in terms of the wider global issue of cyberbullying: It is seen as a victory for privacy in an age when naked photos posted online without consent can be particularly harmful. The ruling is being considered as a blow against "revenge porn." And it established the important principle that consent can be retroactively withdrawn.
But here is the interesting thing about the case: The man had demonstrated no intent of posting or publicizing the photos in any way. He just wanted to keep them. So it wasn't explicitly about cyberbullying. This particular postbreakup dispute seemed to be more about human emotion than possible criminal activity.
The court was obviously thinking: One can't be too careful. This way we pre-empt any possibility of the harmful use of these photos. It is far more difficult to erase photos from the Internet once they have been circulated. The judgment confirms the idea that the mere existence of naked photos on someone else's computer is dangerous.
The ruling follows a trend in European legal views on the supremacy of privacy. It follows a controversial 2014 European Court of Justice ruling regarding the "right to be forgotten." This enables citizens to demand that certain search engines, such as Google, remove references to them from their search indexes. This principle is more readily accepted in European countries than in the United States, where freedom of information is highly privileged, often above other values.
There are some questions I have of the German ruling. It specifies that only "clothed" pictures can be kept. So is the bikini shot clothed? The one on the public topless beach? The distinction between clothed and unclothed doesn't quite address the more subtle distinction between intimate and not-intimate, which is likely the more painful one. Also, how is it to be enforced? There is nothing physical to be turned over to the authorities.
Does the court send a team of sniffer dogs to the guy's apartment to seek out any hidden USB drives?
More fundamentally, it doesn't account for romance. The remnants of vanished love have been kept throughout history, in private and secret boxes containing yellowing letters, theatre tickets, snippets of hair tied with ribbon, blank cards sprayed with a vanished scent. And faded Polaroids.
"I am an old boudoir filled with wilted roses," wrote Baudelaire; we are all thus, and we keep our photos not just to retain possession of another person but to hang on to our own sense of sexual identity, our own youth. It is sad that the possibility of instant global dissemination of imagery – the end of the very idea of a secret box – has ruined this natural and ancient human practice.