If you're one of the many Americans who has taken a risque photo of yourself, we have bad news for you: the law doesn't give you much control over images of your own body.
In many parts of the country, if an ex decides to maliciously post that intimate image of you to a revenge porn website, you can't get it removed unless you own the copyright to the image in question. Even in states with laws against non-consensual nudes, a dude can tweet out a topless photo of his ex but still suffer no legal consequences if the image is nipple-free.
In the U.S., free speech wins out over a person's right to control their image. In other words, giving a woman too much control over who sees her boobs would undermine the First Amendment.
But in Europe, the situation is different. Germany's highest court decided last month that a woman can revoke her consent to an intimate image of herself, whenever she wants to. The ruling is a radical interpretation of consent, one that challenges the basics of how ownership of the body is treated both by the law and the internet.
In the case in question, the court ordered a German photographer to destroy intimate photos and videos of his ex because just having them in his possession violated her right to privacy, even if he had no intention of sharing them. Though his ex originally agreed to the images, when the relationship ended, the court found that consent ended as well.
Germany has some of the strictest privacy laws in Europe, but even so, the court's ruling is remarkable. We know that in the realm of sex, consent is often viewed as a continuum, as something that requires continued permission that can be revoked at any time, rather than a one-time okay. Now that continuum extends to sexual photos: in Germany, someone could revoke consent to a photograph years after it's taken.
That may seem like a pretty big stretch. Taking a photograph is a one-time event. Shouldn't one-time consent be sufficient, too? But what the German court has done is to render a world in which a person's right to control their own bodily image trumps any other factors at play. Everyone, the court determined, has the right to decide who has insight into their sex life, as well as when and in what form.
The German court's ruling is less about consent than it it is about a person's right to choose how much access others have to the most intimate details of their lives. It doesn't matter if a woman once said yes to someone taking sexy, topless photos of her. If they no longer make her comfortable, she can still say no.
The court is astute in its explanation of why the right to revoke consent is so important, arguing that by retaining intimate images, the man in the case in question also retained a kind of "manipulative power" over his ex. In revenge porn cases, we have seen these kinds of intimate images exploited again and again, sometimes purely to shame and harass, other times to outright extort them. But just holding onto the images, the court argues, is a form of power, whether or not he ever plans to share them.
Christina Gagnier, an attorney on the board of directors of Without My Consent, a group that advocates for tougher laws against non-consensual nudes, told me that while the ruling might seem aggressive, it's actually fitting within the context of European privacy laws.
"Consent for personal information can be withdrawn in a variety of contexts already. This is a critical part of personal data rights given to EU residents," she told me via e-mail. "If one partner decides that they no longer consent to that person having the photos or content since the relationship, and accompanying intimacy, no longer exist, this should be within someone's right."
Were the thinking of the German court more widespread, it would make the internet a very different place for women. No longer would a woman in the U.S. need to file a copyright takedown request if unwanted nude images showed up suddenly online. She could just demand that they be taken down. In the last year, some companies have started granting people that right: Twitter, Reddit and Google will now remove nonconsensual nudes from their platforms—but it's certainly not something enshrined in U.S. law.
Perhaps there is something scary and somewhat alarming about a future in which anyone can universally revoke access to certain kinds of images at any time. That is a lot of power in one place, and power that perhaps won't always be used ethically. But there is something attractive about being a German and knowing that when you end a relationship, you're not just revoking access to your body, but to your virtual body as well.