Violation of the very personal sphere of life through picture taking

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Paparazzo (bronze statue)

The violation of the very personal sphere of life by taking pictures is an offense in Germany according to § 201a of the Criminal Code (StGB) , which can be punished with imprisonment of up to two years or a fine .

text

(1) Anyone who is punished with a prison sentence of up to two years or a fine

  1. Unauthorized recording or transmission of an image of another person who is located in an apartment or a room that is specially protected from view and thereby violates the very personal area of ​​life of the person depicted,
  2. a picture that shows the helplessness of another person, produces or transmits without authorization and thereby violates the very personal area of ​​life of the person depicted,
  3. uses a picture taken by an act according to numbers 1 or 2 or makes it accessible to a third person or
  4. knowingly makes an authorized image recording of the type specified in numbers 1 or 2 accessible to a third person without authorization and thereby violates the very personal sphere of life of the person depicted.

(2) Anyone who, without authorization, makes a picture of another person available to a third person that is likely to damage the image of the person depicted, is also punished.

(3) Anyone who takes a picture showing the nudity of another person under the age of eighteen is punished with a prison sentence of up to two years or a fine,

  1. manufactures or offers to procure them to a third person for a fee, or
  2. procured for himself or a third person for a fee.

(4) Paragraph 1 number 2, also in conjunction with paragraph 1 number 3 or number 4, paragraphs 2 and 3 do not apply to actions that are carried out in the safeguarding of overriding legitimate interests, namely art or science, research or teaching, serve to report on current affairs or history or similar purposes.

(5) The image carriers and image recording devices or other technical means used by the perpetrator or participant can be confiscated. Section 74a is to be applied.

Offense

The regulation came into force on August 6, 2004. The legislature justified the new offense with the fact that Section 33 KUG (which criminalizes a violation of Section 22 , Section 23 KUG upon request) was not sufficient. Because this provision only punishes the dissemination and public display of unauthorized photographs, but not the unauthorized production and disclosure to third parties. In addition, the new paragraph ends the unequal treatment between the violation of the confidentiality of the word ( § 201 StGB) and the protection against unauthorized images. Section 201a of the Criminal Code is also relevant for the school sector because of camera cell phones (changing rooms, toilets, etc.). Such cell phones particularly tempt children and adolescents to make secret recordings.

criticism

Press photographer hiding in a water barrel, around 1930

During the legislative process, numerous media lawyers tried in vain to prevent the introduction of the paragraph (also known as the “ paparazzi- paragraph ”). The regulation "hits the core of undercover journalism", wrote investigative journalist Hans Leyendecker . Because journalists who film with a hidden camera, may now be punishable, so Leyendecker. In addition, the constituent features of the “highly personal area of ​​life” and the “specially protected space” are new creations of the legislature, which the case law must first fill out.

Tightening 2014

After the Edathy affair , Justice Minister Heiko Maas commissioned a tightening of the penal code, particularly because of the implementation of European provisions on sexual criminal law. While the unauthorized production and distribution of photos of unclothed people would have been punishable in his draft, this paragraph was changed in the Bundestag: When the new version comes into force, several digits will be added to the paragraph, and the sentence will be increased to a maximum of two years. Producing and distributing recordings that show the helplessness of another person and making available recordings that are likely to damage the image of the person depicted are punishable for third parties. The sale and acquisition of nudes of minors for a fee is completely forbidden, the power that is the focus of the draft is now disregarded. However, there are exemptions for all of these new regulations that affect the arts, science, research and reporting.

Even under the new legal situation, unauthorized acts remain punishable. However, this should not include images of unclothed children in everyday family situations, which remain in the family area and are shown to relatives and friends at best, as these are socially appropriate and common. The authorization can arise either from the consent of the person concerned or, in the case of children depicted who are unable to consent, from the consent of the parents or legal guardians. Likewise, the new § 201a StGB remains a relative application offense, as can be seen from § 205 StGB. With the change, paragraphs 1 and 2 of Section 201a of the Criminal Code were included in the group of private criminal offenses ( Section 374, Paragraph 1 of the Code of Criminal Procedure ).

statistics

The police crime statistics for Germany have shown the crimes under the code 670034 at the earliest since 2009, under the code 670034, 2001 cases nationwide for 2009, 4500 or 5600 cases nationwide in 2013/2014, half of the suspects were between 14 and 21 years old. In some statistics, especially before 2009, “other criminal offenses” are only subsumed under the code 670,000.

In 2012, 151 people were sentenced according to general criminal law on the basis of 201a, 1 to imprisonment, 6 to probation, 144 fines, 11 of which were over 90 daily rates, plus 11 according to juvenile criminal law, all of them for disciplinary purposes. In 2018, around 500 people were convicted, 100 of them under juvenile criminal law: 338 convictions under general criminal law, of which 1 for imprisonment, 15 imprisonment on probation, 322 for fines, of which 38 over 90 daily rates, and 45 convictions under juvenile criminal law.

See also

literature

Web links

Individual evidence

  1. ↑ § 201a StGB Dejure.org
  2. ^ Trimmed freedom of the press . In: Süddeutsche Zeitung , September 3, 2004
  3. ↑ Violation of the highly personal area of ​​life under § 201a StGB By Prof. Dr. Andreas Hoyer , Kiel, PDF 6 pages, magazine for international criminal law dogmatics
  4. ↑ Forty-ninth law amending the Criminal Code - implementation of European provisions on sexual criminal law of January 21, 2015. (PDF) Bundesanzeiger (BGBl)
  5. ↑ Recommended resolution and report by the Committee on Legal Affairs and Consumer Protection (6th Committee) (PDF) German Bundestag, November 12, 2014; accessed on November 16, 2014
  6. ↑ Criminal liability of unauthorized and defamatory photos - amendment §201a StGB Rechtambild.de; accessed on January 21, 2015
  7. ↑ a b bmjv
  8. ↑ bund.de
  9. ↑ Federal Statistical Office, Fachserie 10, Reihe 3, 2012
  10. ↑ Federal Statistical Office, Fachserie 10, Reihe 3, 2018 , published December 2019