Questions about nude pictures.
November 26, 2012 | 40,00 EUR | answered by Jan Wilking
Dear ladies and gentlemen,
Therefore, I would be very grateful if you could answer my questions. If you do not wish to answer my questions or if answering them is not part of your job, please send me an email to reject.
I have read more materials about youth protection, and I learned about the issue with nudist pictures. Many people strongly criticize nudist websites and magazines because some nudist publications feature more nude pictures of children, and nudist offerings are always carefully evaluated by multiple youth protection organizations. However, nudist pictures of children are mostly not considered child pornography. The Higher Regional Court of Hamburg even stated that "mere nude pictures of children are not punishable". Therefore, as more people are concerned, I believe that pedophiles collect such materials through the internet or magazines. Hence, I have some questions.
1. Is the collection of nudist pictures of children through magazines and the internet legally restricted?
Possession of child pornography is of course punishable by law, but is there a law in Germany regarding these materials? If there is no law for supervision, how can pedophiles who collect these materials for sexual gratification be stopped?
2. Is entering search terms in Google Image Search (e.g. "nudism", "nudist pictures", "nudist beach") illegal or not advisable?
I found that many people on websites mentioned that they accidentally saw nude pictures on Google Image Search when searching for terms like "nudism" or "beautiful nudist beaches." These people are afraid that searching for nudist materials is equivalent to searching for child pornography.
Dear inquirer,
I am happy to answer your inquiry taking into account your description of the situation and your contribution as follows:
In the field of telemedia, § 4 (1) No. 9 JMStV regulates that offers are absolutely inadmissible if they depict children or adolescents in an unnaturally sexualized body posture, including virtual representations. In the field of carrier media, § 15 (2) No. 4, (1) JuSchG regulates that corresponding images are highly hazardous to young people and these carrier media are subject to distribution, delivery, and advertising restrictions or prohibitions of indexed carrier media per se (i.e. without inclusion in the list of media hazardous to young people by the Federal Review Board for Media Harmful to Minors). The term "sexualized" means that the sexual appearance of the person is emphasized, without the depiction necessarily being pornographic. Unnatural behavior is behavior that does not correspond to age-appropriate behavior. Simple nudist pictures or bikini pictures, for example, do not fall under the category of depicting children and adolescents in an unnaturally sexualized body posture.
In addition, pornographic writings (§ 11 (3) StGB) that have sexual acts involving, to, or in front of children as their subject may be prohibited under § 184b StGB. This includes posing, i.e. the uncovered, provocative display of the genitals or pubic area. However, only those who obtain possession or at least intend to obtain it are punishable. Possession does not usually include the mere unintentional accessing or viewing of such a page on the internet, especially when searching for (generally not prohibited) nudist pictures.
The distribution, acquisition, and possession of pornographic writings that have sexual acts involving, to, or in front of teenagers as their subject are now also punishable (§ 184c StGB). However, it must actually be pornography, i.e. the coarsened depiction of sexual life while excluding all other human relations. Simple nude photos are therefore not pornography.
1. As long as the nudist pictures show children and adolescents in their natural nudity without distortion or staging, this cannot be prohibited by law, even if pedophiles could exploit this (as an unwanted and morally reprehensible side effect) for their sexual gratification.
2. Likewise, someone searching using the term "nudist" does not commit a crime if they unintentionally come across child pornography photos as a result of the search. This is usually not considered intentional accessing and viewing if the page is immediately left. It is advisable, however, to immediately delete the corresponding internet cache/browser cache afterwards.
I hope this provides you with a helpful initial orientation. If you have any uncertainties, please use the free follow-up function.
Please note that I cannot give a final recommendation without knowledge of all circumstances in the context of an initial consultation. If you wish for a final assessment of the situation, I recommend contacting a lawyer and discussing the situation with them after reviewing all documents.
Best regards.
