Term and Definition of Upskirting
Upskirting refers to the unauthorized photographing or filming under a person’s skirt or dress—usually without their knowledge and consent. The act is aimed at capturing intimate body areas, particularly the genital area or underwear, in photo or video recordings. Upskirting represents a serious intrusion into privacy and sexual self-determination.
Historical Development and Social Context
Upskirting initially occurred primarily in connection with the spread of smartphones and miniature cameras. Technological developments made it possible to discreetly and almost imperceptibly make recordings in public spaces. In addition to public places, public transport, shopping centers, or stairways are frequently affected.
Increasing media coverage and social pressure led to demands for criminal prosecution, as the existing law often did not provide adequate protection.
Criminal Liability and Legal Classification in Germany
Previous Legal Situation
Before the introduction of specific laws, there was a gap in protection. An offense was often not established because neither Section 201a of the Criminal Code (StGB) – Violation of the Highly Personal Sphere by Image Recordings – nor Section 183 StGB – Exhibitionist Acts – nor Section 184k StGB – Distribution of Recordings of Minors – applied accurately. Proof was also difficult, as the protected legal interest was not always clearly identifiable.
Introduction of the Upskirting Ban
Movements by those affected and a large number of documented cases led to the introduction of a specific criminal offense in Germany in 2020. With the Law Amending the Criminal Code – Improving Personality Protection in Image Recordings Upskirting was explicitly criminalized as Section 184k StGB, effective January 1, 2021.
Section 184k StGB – Ban on Photography Under the Skirt
Excerpt from the Law: “Any person who, without being observed by another person, makes or transmits an image recording of another person’s intimate area, which is protected from view by clothing, shall be punished by imprisonment for up to two years or by a fine.”
The provision protects sexual self-determination and the highly personal sphere. While Section 201a StGB concerns image recordings in protected spaces such as private homes, Section 184k StGB expressly targets photographing under clothing in public or freely accessible areas.
Elements of the Offense
- Act Committed: The making or transmission of an image recording of the intimate area. This specifically includes images taken under a skirt or dress, as well as recordings of persons who would otherwise be covering their intimate areas.
- Object of the Act: Any other person whose intimate area is concealed by clothing. It is irrelevant whether the victim notices or is aware of the recording.
- Means Used: It is immaterial whether the recording is made with a smartphone, a mini camera, or any other device.
- Intent: At least conditional intent regarding the recording of the concealed intimate area is required.
Range of Penalties and Legal Consequences
The range of penalties includes a fine or imprisonment of up to two years. In addition to punishment, the court may order the destruction of the image recordings and the confiscation of devices used. Furthermore, civil claims, such as for injunction or compensation for pain and suffering, are possible.
Attempt, Preparation, and Participation
As Section 184k StGB is a misdemeanor, an attempt is generally punishable. Forms of participation such as incitement or aiding and abetting are also covered by the general provisions of the StGB.
Distinction from Related Criminal Offenses
Section 201a StGB – Violation of the Highly Personal Sphere
Section 201a StGB protects against unauthorized image recordings in protected spaces and leaves protection gaps in many public situations, which have been closed by Section 184k StGB.
Section 33 Art Copyright Act (KUG) – Right to One’s Own Image
The KUG establishes claims for injunction and damages in the event of publication or distribution of images against the will of the depicted person, but does not provide sufficient protection against the making of images as described.
Sections 22–24 KUG – Consent to Image Publication
Consent regulates the publication or public display of images and must be strictly distinguished from the making of recordings.
International Legal Situation
Austria
Upskirting is punishable under Section 120 (1a) of the Criminal Code (StGB). There, the “unauthorized making or transmission of an image recording of the area of the genitals, buttocks, or breasts, which is protected from view by clothing” is subject to imprisonment of up to one year or a fine.
Switzerland
Under Article 179quinquies of the Swiss Criminal Code, secretly photographing or filming a person’s intimate area is punishable.
Great Britain
In England and Wales, upskirting became a criminal offense in 2019 under the Voyeurism (Offences) Act. A prison sentence of up to two years may be imposed, and offenders may be placed on the police sex offenders register.
Civil Law Consequences
In addition to criminal protection, general personality rights provide protection against upskirting. Affected persons may bring civil claims for injunction, removal, destruction of recordings, and compensation for pain and suffering. In addition, there may be a claim for reimbursement of legal costs and, where applicable, damages for non-material harm.
Prevention and Victim Protection Measures
Numerous initiatives raise awareness about the dangers of upskirting. To facilitate prosecution, reporting centers, counseling services, and information campaigns have been established. Affected persons are encouraged to report crimes to law enforcement and secure evidence.
Summary
Upskirting constitutes a serious violation of the personal and sexual rights of those affected. The statutory criminal provision introduced in 2021 in Section 184k StGB effectively closes the previous gap in protection. In addition to criminal consequences, civil law offers further claims for affected persons. There is also an increasing tendency internationally to criminalize upskirting and thus react appropriately to developments in the digital age.
Frequently Asked Questions
Is upskirting punishable in Germany?
Yes, upskirting is explicitly punishable in Germany under Section 184k of the German Criminal Code (StGB). This section makes the unauthorized production and transmission of image recordings, which generally affect a person’s intimate sphere, a criminal offense. Specifically, the law covers photographing, filming, or transmitting the intimate area of a person when this is done against their will, for example, under a skirt or into a blouse, and there is a legitimate interest to protect against such recordings. Since July 2020, this act has been treated as an independent sexual offense and can be punished by a fine or imprisonment of up to two years.
What penalties can be imposed for violating the upskirting ban?
A violation of the upskirting ban under Section 184k StGB can result in a fine or imprisonment of up to two years, depending on the severity of the act. The sentencing depends on various factors, such as the frequency of the offense, whether images were distributed, or if there are prior convictions. In addition, civil claims for damages, such as compensation for pain and suffering or for injunctive relief or deletion of the recordings, may exist.
Is it also punishable to distribute or possess upskirting recordings?
Yes, the distribution or public making available of images obtained by upskirting is also punishable. Under Section 184k StGB, not only the making but also the disclosure of such images is subject to punishment. Even forwarding, publishing on social networks, or attempting to make such recordings accessible to a larger group of people can be prosecuted under criminal law. Possession itself is punishable under the current law if a legitimate interest of the depicted person is infringed and no consent was given.
What legal requirements must be met for an act to be considered upskirting?
For criminal liability under Section 184k StGB, it is required that the act involves an unauthorized image recording of another person’s intimate area, who is in a place especially protected from view or when the images are taken from beneath the clothing. Furthermore, the making or transmission of the recordings must be against the will of the person. A specific legitimate interest of the affected person in the protection of their intimate sphere is presumed. Criminal liability is waived if the affected person has expressly consented or if a justifying emergency exists.
Can minors also be held accountable for upskirting?
Yes, minors can also be held accountable for upskirting, provided they have reached the age of 14 and are thus criminally responsible. From this age, juvenile criminal law can be applied, which focuses particularly on educational measures. Criminal responsibility requires that the offender has the necessary capacity to recognize the wrongdoing and to act accordingly.
Are attempts to commit upskirting also punishable?
Attempts at upskirting are punishable under German criminal law. The mere initiation of the offense, such as secretly placing a camera under a skirt, even if no usable photo results, can be considered an attempt. Attempts are usually punished more leniently than completed offenses, but a fine or imprisonment may still be imposed.
Are there differences in criminal liability between public and private places?
German law does not differentiate regarding the location of the offense when it comes to upskirting. The decisive factor is that the affected person is in a place that is typically protected from view, for example, in public transport, on the street, in a supermarket, or in private spaces. Criminal liability is not negated by the fact that the offense was committed in public—on the contrary: The need for protection of the intimate sphere applies in all places where a person is present and does not have to expect to be photographed or filmed in their intimate area without consent.
