If a man publishes a photo of himself having oral sex with a woman on the internet without the woman's consent and if the woman suffers damage to her health as a result, she may be entitled to compensation for pain and suffering - in this case in the amount of 7,000 euros. This was decided by the 3rd Civil Senate of the Higher Regional Court of Hamm on 20 February 2017, thus confirming the decision of the Regional Court of Münster in the first instance on the merits.
The parties from Münsterland, who were born in 1995, were romantically involved. In 2011, the defendant took a photo with his mobile phone showing the couple having private oral sex and the plaintiff can be recognised on it. In 2013, he posted this photo - the parties had previously ended their relationship - on an internet platform which was generally viewable and visited by friends and acquaintances of the couple. It then spread - without any action on the part of the defendant - in particular via social networks on the internet. A few days after it was posted, the plaintiff learned of the publication of the photo. She asked the defendant to remove the photo, which he did immediately. Later, he also deleted his profile on the internet platform.
In the present civil case, it was established that the plaintiff had suffered damage to her health as a result of the publication in the form of mental illnesses extending successively over several years. She demanded damages from the defendant, including compensation for pain and suffering in the amount of at least 5,000 euros.
The 3rd civil senate of the Higher Regional Court of Hamm awarded the plaintiff damages of 7,000 euros to compensate for her immaterial damage (and at the same time reduced the damages of 20,000 euros awarded by the Regional Court).
According to the senate, the defendant had caused damage to the plaintiff's health by publishing the intimate photo depicting the plaintiff on the internet without her consent. As a result, the plaintiff had suffered various mental illnesses, including severe ones, extending successively over several years. The medical expert heard by the senate had convincingly confirmed the damage to her health and its causation by the defendant.
The amount of the damages for pain and suffering - in view of the severity of the injuries and their consequences as well as the fault of the tortfeasor - had to be assessed at 7,000 euros within the scope of an overall assessment to be carried out.
The mental illnesses suffered by the plaintiff and the effects on her way of life had to be taken into account. The plaintiff had withdrawn for a long time, had shied away from publicity and had initially not seen herself in a position to start vocational training. In addition, the publication of the photo had led to a massive exposure of the plaintiff, who was particularly vulnerable due to her young age, to an incalculable number of people, including those close to her. Even though the defendant had deleted the photo from his internet profile after a short time, third persons had (predictably) already discovered and downloaded it. The dissemination of the photo was uncontrollable.
In contrast, it also had to be taken into account that the defendant, who regretted his actions, uploaded the picture - presumably heavily intoxicated - in the course of an unreflective spontaneous act on the internet, apparently - probably also in view of his young age - without thinking about the far-reaching consequences of his actions.
Furthermore, due to the fact that the applicant had in the meantime graduated from school and had changed her place of residence, it was no longer to be expected that the applicant would continue to be massively confronted with the photo in the future. According to her own statements, this was in any case not the case at present. Finally, it was highly probable that the photo had originally been taken with the agreement of the parties.
The entire circumstances justified the damages for pain and suffering of 7,000 euros awarded by the senate.
Final judgement of the 3rd Civil Senate of the Higher Regional Court of Hamm of 20.02.2017 (3 U 138/15)
Source: Press release of the Higher Regional Court of Hamm, Christian Nubbemeyer, Press Secretary
GoldbergUllrich Attorneys at Law 2017
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
