Photographing Someone Without Consent in Germany: § 201a and § 184k StGB

Taking a photograph of another person in Germany, sharing it, and storing it on a phone that syncs to a cloud service are not one legal question. They are three, and German law answers them under three separate regimes that can all apply to a single press of the shutter.

The criminal law regime sits in the Strafgesetzbuch, in § 201a StGB for the höchstpersönlicher Lebensbereich and in § 184k StGB for the Intimbereich. A second, much older regime, the Recht am eigenen Bild in §§ 22 and 23 KunstUrhG, governs whether a portrait may be disseminated or publicly displayed. A third regime, the DSGVO together with the BDSG, governs the processing of the image as personal data.

The practical consequence is that an image can be entirely lawful to take and unlawful to post, or criminal to take even though nobody ever sees it. This page works through what each regime actually says, using the statutory text, and then applies all three to one worked scenario.

Information last verified on 20 July 2026. This page provides general legal information and does not constitute legal advice in an individual case.

Three regimes, one photograph

Before looking at any individual provision, it helps to fix the structure, because almost every misunderstanding in this area comes from collapsing the three regimes into one.

The first question is whether making the image was itself a criminal act. That is answered inside the Strafgesetzbuch, principally by § 201a StGB and § 184k StGB. Both are narrow: they describe specific situations rather than a general prohibition on photographing people.

The second question is whether the image may be disseminated or publicly displayed. That is answered by the Recht am eigenen Bild in §§ 22 and 23 KunstUrhG, a statute from 1907 that remains operative alongside the DSGVO, with its own criminal provision in § 33 KunstUrhG.

The third question is whether handling the image is lawful processing of personal data. That is answered by the DSGVO and, for the areas the DSGVO leaves to national law, the BDSG. A photograph that identifies a person is personal data, so this layer applies in parallel with the other two rather than instead of them.

What § 201a StGB actually covers

§ 201a StGB is headed Verletzung des höchstpersönlichen Lebensbereichs und von Persönlichkeitsrechten durch Bildaufnahmen. The base penalty in § 201a Abs. 1 StGB is imprisonment of up to two years or a fine.

The dwelling and the space specially protected against view

§ 201a Abs. 1 Nr. 1 StGB punishes whoever, without authorisation, makes or transmits an image recording of another person who is in a dwelling or in a space specially protected against view, and thereby violates the höchstpersönlicher Lebensbereich of the person depicted.

Three elements have to be present together. The person has to be in a Wohnung or in a gegen Einblick besonders geschützter Raum, a space specially protected against view. The image has to be made or transmitted unbefugt. And the making or transmitting has to violate the höchstpersönlicher Lebensbereich, the innermost sphere of private life, which is a narrower concept than privacy in general.

The second element is the one that decides most cases. A space specially protected against view is a space arranged so that it shields what happens inside it from being seen, such as a changing cubicle, a toilet cubicle, or a medical examination room. An open field screened only by distance is not one, and neither is a garden visible from the street.

Helplessness, the deceased, and the distribution variants

§ 201a Abs. 1 Nr. 2 StGB covers an image recording that puts the helplessness of another person on display, made or transmitted without authorisation, where that violates the höchstpersönlicher Lebensbereich. This is the provision aimed at, among other things, photographing accident victims and people who are unconscious or otherwise unable to protect themselves.

§ 201a Abs. 1 Nr. 3 StGB covers an image recording that displays a deceased person in a grossly offensive manner. Note that this variant does not require a violation of the höchstpersönlicher Lebensbereich in the same way the first two do; the grossly offensive display is itself the wrong.

§ 201a Abs. 1 Nr. 4 StGB then punishes whoever uses an image produced through one of those acts, or makes it available to a third party. § 201a Abs. 1 Nr. 5 StGB goes one step further and punishes whoever knowingly and without authorisation makes available to a third party an image of the kinds described in Nr. 1 to 3 that was itself produced lawfully, and in the cases of Nr. 1 and 2 thereby violates the höchstpersönlicher Lebensbereich.

Nr. 5 is the variant people miss most often. A photograph taken with full consent, for example inside a medical setting or a private home, can become criminal at the moment it is passed on to someone the subject never agreed to.

§ 201a Abs. 2 StGB: images that seriously damage reputation

§ 201a Abs. 2 Satz 1 StGB punishes, on the same penalty scale, whoever without authorisation makes available to a third party an image recording of another person that is capable of seriously damaging the reputation of the person depicted. § 201a Abs. 2 Satz 2 StGB extends this, under the same conditions, to an image of a deceased person.

This limb is not tied to a dwelling or a protected space at all. It is about what the image does to the person, not where it was taken. A photograph taken in an ordinary public place can fall within § 201a Abs. 2 StGB once it is passed on, if it is capable of seriously damaging that person's standing.

Note also what § 201a Abs. 2 StGB does not punish: it targets making the image available to a third party, not the taking of it. So the taking may be outside the criminal law entirely while the sharing is not.

The nakedness of minors and the exemption clause

§ 201a Abs. 3 StGB covers an image recording whose subject is the nakedness of a person under eighteen, where it is produced or offered in order to supply it to a third party for payment, or obtained for payment for oneself or a third party. The penalty is again imprisonment of up to two years or a fine.

§ 201a Abs. 4 StGB then carves out acts done in the pursuit of overriding legitimate interests, in particular art or science, research or teaching, or reporting on events of contemporary history, or similar purposes. Read the scope of that carve out carefully: it applies to § 201a Abs. 1 Nr. 2 and Nr. 3, including in conjunction with Nr. 4 or Nr. 5, and to § 201a Abs. 2 and Abs. 3. It does not apply to § 201a Abs. 1 Nr. 1.

§ 201a Abs. 5 StGB allows the image carriers and the recording devices or other technical means used by the offender or a participant to be confiscated, with § 74a StGB applying.

What § 201a StGB does not cover

It is worth being blunt about the gaps, because German consumer explanations routinely overstate the reach of this provision.

§ 201a StGB does not create a general prohibition on photographing people. A photograph of a stranger on a pavement, in a park, at a station or in a restaurant is not caught by § 201a Abs. 1 Nr. 1 StGB, because the person is not in a dwelling or in a space specially protected against view.

§ 201a StGB does not cover upskirting. That situation has its own provision, discussed next, and treating it as a § 201a case is a legal error rather than a shorthand.

And § 201a StGB does not answer whether an image may be published. That is the KunstUrhG question, and a photograph that is entirely lawful to take under the Strafgesetzbuch can still be unlawful to post.

§ 184k StGB: the distinct upskirting and downblousing offence

§ 184k StGB is headed Verletzung des Intimbereichs durch Bildaufnahmen and sits in the sexual offences chapter of the code rather than alongside § 201a StGB. It came into force on 1 January 2021 and carries imprisonment of up to two years or a fine.

§ 184k Abs. 1 Nr. 1 StGB punishes whoever intentionally or knowingly makes or transmits, without authorisation, an image recording of the genitals, the buttocks, the female breast, or the underwear covering those body parts, of another person, insofar as those areas are protected against view.

The phrase gegen Anblick geschützt is what makes the provision fit the upskirting and downblousing situations. Clothing is what provides the protection against view, so an image taken under a skirt or down a neckline captures an area the person had shielded, even though the person is standing in a fully public place. That is precisely the gap § 201a Abs. 1 Nr. 1 StGB leaves open, since a public pavement is not a space specially protected against view.

§ 184k Abs. 1 Nr. 2 StGB extends liability to using such an image or making it available to a third party, and § 184k Abs. 1 Nr. 3 StGB to knowingly making available to a third party, without authorisation, an image of that kind that was produced lawfully.

§ 184k Abs. 3 StGB contains an overriding legitimate interests exemption in the same terms as § 201a Abs. 4 StGB, and § 184k Abs. 4 StGB allows confiscation of the image carriers and devices used.

The complaint requirement in § 184k Abs. 2 StGB

§ 184k Abs. 2 StGB provides that the offence is prosecuted only on application, unless the prosecution authority considers intervention of its own motion to be necessary because of the special public interest in prosecution.

That complaint rule lives inside § 184k StGB itself. It is not routed through § 205 StGB, which is the complaint provision for the offences in the section on the violation of the personal sphere and secrecy. Anyone reading across from the spoken word offence should keep the two structures apart.

The contrast with § 201 StGB is instructive. § 205 Abs. 1 Satz 1 StGB makes § 201 Abs. 1 and Abs. 2 StGB prosecutable only on application with no override at all, so § 201 StGB is an absolute Antragsdelikt. The ex officio override in § 205 Abs. 1 Satz 2 StGB is written for §§ 201a, 202a, 202b and 202d StGB. So § 201a StGB has an override, § 184k StGB has its own override, and § 201 StGB has none.

In every case where an application is required, § 77b Abs. 1 StGB sets the period at three months, running under § 77b Abs. 2 StGB from the end of the day on which the entitled person learns of both the act and the identity of the offender.

The Recht am eigenen Bild: §§ 22, 23 and 33 KunstUrhG

The Kunsturhebergesetz of 1907 still supplies the core of German image rights, and its central provision is short. § 22 Satz 1 KunstUrhG states that portraits may only be disseminated or publicly displayed with the consent of the person depicted.

Two things follow immediately. First, the trigger is dissemination or public display, not the taking of the picture. Second, the default is consent, so the person publishing the image is the one who has to be able to point to either consent or an exception.

§ 22 Satz 2 KunstUrhG adds a presumption: in case of doubt, consent is deemed to have been given where the person depicted received remuneration for allowing themselves to be depicted. § 22 Satz 3 KunstUrhG provides that after the death of the person depicted, the consent of relatives is required for a period of ten years, and § 22 Satz 4 KunstUrhG defines relatives for this purpose as the surviving spouse or civil partner and the children, and, where there is neither a spouse or civil partner nor children, the parents.

The § 23 KunstUrhG exceptions

§ 23 Abs. 1 KunstUrhG lists four categories that may be disseminated and displayed without the consent § 22 KunstUrhG otherwise requires.

§ 23 Abs. 2 KunstUrhG then withdraws the exception again where the dissemination or display violates a legitimate interest of the person depicted, or, where that person has died, of the relatives. This second paragraph is what turns the list into a balancing exercise rather than a set of safe harbours. An image may fall squarely within one of the four categories and still be unlawful to publish because of what it shows and how it is used.

The incidental accompaniment exception in Nr. 2 is the one that most often does not do the work people expect. A person is Beiwerk only where the image would keep its character if that person were removed. A street scene composed around one recognisable face is not covered by it, however busy the street was.

§ 33 KunstUrhG: the criminal side of image rights

§ 33 Abs. 1 KunstUrhG punishes whoever disseminates or publicly displays a portrait contrary to §§ 22 and 23 KunstUrhG with imprisonment of up to one year or a fine. § 33 Abs. 2 KunstUrhG provides that the offence is prosecuted only on application.

That is a genuinely separate criminal exposure from § 201a StGB. A photograph lawfully taken on a public street, and therefore outside § 201a Abs. 1 Nr. 1 StGB entirely, can still lead to liability under § 33 KunstUrhG once it is published without consent and without an applicable § 23 KunstUrhG exception.

The DSGVO and BDSG layer

A photograph from which a person can be identified is personal data, so handling it is processing within the meaning of the DSGVO. That means a lawful basis under the DSGVO is needed for the processing, in addition to whatever the Strafgesetzbuch and the KunstUrhG say, and the information duties and data subject rights of the DSGVO apply on top.

The relationship between the DSGVO and the older KunstUrhG has been the subject of sustained legal debate since 2018, and the debate is not fully settled. What is safe to say is that the KunstUrhG provisions have continued to be applied by German courts alongside the DSGVO rather than being treated as swept away by it, and that a publisher facing an image rights dispute in Germany will generally meet both bodies of law rather than one.

Supervision of the data protection layer is split strictly by the type of body being supervised, and this is regularly reported wrongly. The Bundesbeauftragte für den Datenschutz und die Informationsfreiheit supervises federal public bodies together with telecommunications and postal service providers. The seventeen Landesdatenschutzbehörden supervise virtually the entire private economy, along with Land and municipal bodies. Bavaria is the exception worth knowing: it runs two, the Bayerischer Landesbeauftragte für den Datenschutz for public bodies and the Bayerisches Landesamt für Datenschutzaufsicht for the private sector, which is why there are seventeen Land authorities for sixteen Länder. A complaint about a private company's use of a photograph therefore goes to a Land authority, not to the federal one.

For video surveillance specifically, which is the recurring practical case, the relevant national provision on publicly accessible spaces is § 4 BDSG, and the analysis there runs through the surveillance rules rather than through the portrait rules of the KunstUrhG. That is dealt with on the pages for workplace surveillance and neighbour surveillance cameras.

A worked scenario

Consider a single afternoon. A person attends a public demonstration in a city square, photographs the crowd, and one participant is clearly recognisable in the foreground holding a banner. Later, in a shop, the same photographer takes a picture through the gap in a changing cubicle curtain. That evening, both images are posted to a public social media account.

Take the demonstration photograph first. Making it is not caught by § 201a Abs. 1 Nr. 1 StGB, because the participant was in a public square rather than in a dwelling or a space specially protected against view. It is not § 184k StGB either, because no area protected against view by clothing was targeted.

Publishing it engages § 22 KunstUrhG, since the participant is recognisable and no consent was given. But § 23 Abs. 1 Nr. 3 KunstUrhG covers images of assemblies and processions in which the persons depicted took part, which this demonstration is. § 23 Abs. 2 KunstUrhG then asks whether publication nevertheless violates a legitimate interest of the participant, which turns on how the image is framed, captioned and used. A neutral crowd photograph and the same photograph captioned so as to expose the person to hostility are not the same case.

Now the changing cubicle photograph. A changing cubicle is a space specially protected against view, the image was made without authorisation, and it violates the höchstpersönlicher Lebensbereich, so § 201a Abs. 1 Nr. 1 StGB is engaged at the moment of taking. If the framing targeted the areas listed in § 184k Abs. 1 Nr. 1 StGB while they were protected against view, § 184k StGB is engaged as well. Posting it adds § 201a Abs. 1 Nr. 4 StGB, since it is the use and making available of an image produced through an act under Nr. 1, and it engages § 22 KunstUrhG with no § 23 KunstUrhG exception in sight.

Note that the exemption in § 201a Abs. 4 StGB would not help even if a reporting purpose were claimed, because that exemption does not extend to § 201a Abs. 1 Nr. 1 StGB.

The same afternoon has therefore produced one image where the taking is lawful and the publication is the only real question, and one image where the taking is already criminal and the publication compounds it.

Civil claims run in parallel

None of the above displaces the civil law. The general personality right derived from Art. 2 Abs. 1 in conjunction with Art. 1 Abs. 1 GG is recognised as a sonstiges Recht within § 823 Abs. 1 BGB, so an unlawful and culpable infringement can found a damages claim.

§ 823 Abs. 2 BGB supplies a second route, since a person who breaches a statute intended to protect another is liable in the same way, and both § 201a StGB and § 33 KunstUrhG are protective statutes of that kind. § 1004 BGB, applied by analogy to personality rights, supports claims for removal and for an injunction restraining repetition, which in image cases is often what the affected person actually wants: deletion of the file and an undertaking not to republish it.

These civil timelines run independently of the three month period in § 77b StGB. Letting the criminal complaint window pass does not extinguish a civil claim, which follows the ordinary civil limitation rules.

How the image regime sits next to the spoken word

The image provisions are deliberately narrower than the spoken word provision, and the contrast is the fastest way to remember both. § 201 StGB protects every non-public spoken word without asking where it was spoken, and carries up to three years. § 201a StGB protects images only in defined situations and carries up to two years.

A video that captures both picture and sound engages both regimes at once, which is why filming rather than audio recording is not a route around § 201 StGB. The spoken word analysis is set out in full on recording conversations under § 201 StGB, and the separate question of what a court will admit is on secret recordings as evidence.

Where an image is published in a way that also asserts something untrue about the person, a further body of law comes into play, since the reputation offences and civil claims are structured differently again. That is covered in the German defamation law section. The full map of German recording and surveillance law is at the German recording law hub, and general background on German law is at German law explained.

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