Non-consensual distribution of sexually explicit content

What is punitive?

Displaying, accessing or distributing visual or audio content of a disembodied person or a person performing an explicit act without the person's consent or without the person's knowledge is punishable, even if the person would have instituted making it.

This crime is also often referred to as "revenge porn" since it is more common for an ex-partner to distribute nude images of the other ex-partner out of revenge for ending a relationship.

The Supreme Court ruled in a judgment dated October 29, 2019, that the recognizability of the person is not a criterion. Once the victim recognizes himself in the images distributed, the crime is accomplished, even if the victim would not be recognizable to third parties.

Moreover, distributing sexual images of minors may constitute the crime of distributing child porn make up.

Can minors give consent?

There is no crime if the unclothed person or the person performing an explicit act has given his consent to the display or distribution of visual material.

Minors cannot, in principle, give legally valid consent for the dissemination of sexual images (only their parents can do so). There is one exception to this so as not to hinder minors' sexual experimentation and sexual development. Sexting between minors over the age of 16 is permitted; they can create sexual images with mutual consent and share and possess them among themselves.

This exception does not apply if:

• the sexually explicit content is shown or distributed to a third person
• A third party attempting to obtain sexually explicit content
• the offender is a blood relative or relative in the direct ascending line or an adopter or a blood relative or relative in the lateral line up to the third degree or any other person who has a similar position in the family or any person who habitually or occassionally lives with the minor and has custody of that minor; or
• the act was made possible because the perpetrator used a recognized position of trust, authority or influence over the minor

How is the crime punished?

This crime is punishable by imprisonment from 6 months to 5 years (art. 417/9 Criminal Code).

If the disseminator of the images does so with malicious intent or for profit, the punishment is imprisonment from 1 year to 5 years and a fine from 200 to 10,000 euros (art. 417/10 Criminal Code).

An attempt to commit this crime is also sanctioned with the same penalty.

How can the images themselves be taken offline?

As a victim, you often want not only that the perpetrator be punished but more importantly that the nude images themselves are no longer accessible online or continue to circulate.

The victim may apply to the president of the court of first instance requesting that the distributor and all intermediaries (such as Internet service providers) be ordered to remove or block access to the images (Art. 584, 7° Judicial Code).

The court can impose all possible appropriate measures so that Internet service providers must take down the images no later than 6 hours after service of the court's decision. This measure can be directed not only to access providers such as Proximus or Telenet, but also to social media providers such as Instagram or Facebook, and search engines such as Google. From an October 3, 2019 judgment of the Court of Justice, by the way, it can be inferred that such an injunction can also apply to substantively identical images, which means that altered images can also be covered by the injunction.

If the disseminator or the Internet service provider refuses to cooperate technically with the order to remove non-consensual sexually disseminated images, they can be sentenced to a fine of 200 to 15,000 euros (art. 417/56 Criminal Code).