Is sending sensitive photos subject to criminal prosecution?

I and my girlfriend have been together for over a year. When we fell in love, we took some sensitive photos. Recently, I found out that my girlfriend is going out with another guy, which makes me very angry. One day, I sent some sensitive photos of my girlfriend to them to get my girlfriend back to me. Currently, my girlfriend is reporting to the police that I sent her sensitive photos to the others. I would like to know if I will be prosecuted?

FDVN’s Opinions:

According to the information, it is illegal if you send sensitive photos of your girlfriend to others. It is stipulated in Article 32 of Civil Code 2015 on the rights of an individual with respect to his/her image that “1. Each individual has rights with respect to his/her own image.

The use of an image of an individual must have his/her consent.

…

3. If the use of an image violates the regulation prescribed in this Article, the image’s owner has the right to request a court to issue a decision that compels the violator or relevant entities to revoke, destroy or terminate the use of the image, compensate for damage and adopt other measures as prescribed in law.”

According to Article 34 of Civil Code 2015 on right to protection of honor, dignity and prestige:

“1. Honor, dignity and prestige of an individual is inviolable and protected by law.

2. Each individual has the right to request a court to reject any piece of information adversely affecting to his/her honor, dignity and/or prestige.

3. If a piece of information adversely affecting the honor, dignity and prestige of a person is posted on a means of mass media, that piece of information shall be removed or rectified by that kind of means. If that piece of information is kept by an agency, organization or individual, such entity is required to cancel it.

5. The person receiving the information adversely affected his/her honor, dignity, and/or prestige both have the right to request rejection of such piece of information and has the right to require to informing person gives a public apology and rectification and compensation.”

Thus, an individual has a right to his or her image, and the use of an individual's image by a person must be agreed upon by that person. Therefore, someone's personal image is used without his/her permission such as sensitive photos which make his/her rights on a person's honor and dignity be infringed, he/she has the right to request the person who posted that image to remove, correct, apologize and compensate for his/her damage under Article 592 of the 2015 Civil Code. Specifically:

“Article 592. Damage caused by harm to honor, dignity or reputation

1. Damage caused by harm to the honor, dignity or reputation shall comprise:

a) Reasonable costs for mitigating and remedying the damage;

b) Loss of or reduction in actual income;

c) Other damage as prescribed by law.

2. A person causing harm to the honor, dignity or reputation of another person must pay compensation for damage as provided in Clause 1 of this Article together with another amount of money as compensation for mental suffering of the aggrieved person. The amount of compensation for mental suffering shall be as agreed by the parties; if the parties are not able to agree, the maximum sum shall not exceed ten-month base salary prescribed by the State.”

In addition to being civilly handled and compensation for damage, you may be subject to an administrative penalty of between VND 10,000,000 and VND 20,000,000 according to Point a, Clause 1, Article 101 of Decree 15/2020/ND-CP on behavior of “Providing/sharing fake or false information with the aims of distorting, slandering or damaging the prestige, honor and dignity of other organizations, authorities or individuals;”

Besides, your acts may also be prosecuted for penal liability, if the acts have performed enough elements to constitute a crime. To determine whether your behavior can be prosecuted for criminal liability, it is also based on the manners and means of distributing those photos, the number, the size of the photos, and the number of people who receive and access them. In addition, it is also based on whether you have any offensive words or actions to your girlfriend when sending those photos.

According to Article 155 of Criminal Code 2015 (amended and supplemented in 2017) on insults to another person, “1. Any person who seriously insults another person shall receive a warning, be liable to a fine of VND 10,000,000 - VND 30,000,000 or face a penalty of up to 03 years' community sentence.

2. This offence committed in any of the following circumstances carries a penalty of 03 - 02 years' imprisonment:

a) The offence has been committed more than once;

b) The offence is committed against 02 or more people;

c) The offence involves abuse of the offender's position or power;

d) The offence is committed against a law enforcement officer in performance of his/her official duties;

dd) The offence is committed against a person who cares for, teaches, raises or provides medical treatment for the offender;

e) The offence is committed using a computer network, telecommunications network or electronic device;

g) The victim suffers from 11% - 45% mental and behavioral disability because of the offence.

3. This offence committed in any of the following circumstances carries a penalty of 02 - 05 years' imprisonment:

a) The victim suffers from ≥ 46% mental and behavioral disability because of the offence;

b) The offence results in the suicide of the victim.

4. The offender might be prohibited from holding certain positions, practicing his/her profession or doing certain jobs for 01 - 05 years.”

From the above legal grounds, depending on the nature and extent of the violation, the person who uploads the other's sensitive photos may be administratively handled, criminally handled, or required to compensate.

Lawyer Mai Quốc Việt –  FDVN Law Firm

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