Pornography and the European Convention on Human Rights

Abstract

This article considers the jurisprudence of the European Court of Human Rights and the former European Commission of Human Rights in respect of human rights complaints, brought under the European Convention on Human Rights (ECHR), about issues relating to the possession, production or distribution of materials classified as pornographic or obscene. Through a critical examination of ECHR jurisprudence relating to three rights – the right to freedom of expression, the right to respect for private life, and the right to be free from degrading treatment – the article focuses specifically on how the Strasbourg organs have shaped human rights relating to adult pornography in Europe. The article concludes by suggesting ways in which ECHR jurisprudence might be evolved to further enhance human rights protection in the future.

Keywords:

• Council of Europe
• degrading treatment
• European Court of Human Rights
• freedom of expression
• privacy

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Erratum

Acknowledgements

The author is very grateful to the three anonymous referees who read this article and provided critical and constructive comments.

Notes

1. In this article I focus on issues relating to adult pornography and do not consider ECHR jurisprudence in respect of the possession, production or distribution of child pornography. ECHR jurisprudence in the area of child pornography is recognized as ‘rather sparse’ (Council of Europe/ECtHR 2011, 6) but, for recent developments, see Söderman v Sweden (2013) and K.U. v Finland (2008).

2. Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 005.

3. Law No.1520-17 (11 June 2009), amending Art.301 of the Criminal Code of Ukraine, makes the ‘storage’ of any ‘pornographic item’ for the purposes of ‘sale or distribution’ a criminal offence. This has been interpreted to criminalize possession (see Stuligrosz 2011).

4. S.63 Criminal Justice and Immigration Act 2008; S.42 Criminal Justice and Licensing (Scotland) Act 2010.

5. This principle has endured, and in Nilsen v the United Kingdom (2010) the ECtHR rejected a complaint by a convicted murderer about the suppression of his writing by prison authorities because it contained, inter alia, ‘several lurid and pornographic passages’.

6. See also X., Y. and Z. v Belgium (1977).

7. Also of relevance is the earlier decision in X. v the United Kingdom (1978) concerning a complaint about the confiscation of a postal package sent to the applicant that contained ‘various issues of a pornographic magazine’. The ECmHR determined that the magazines contained depictions of ‘adult persons engaged in homosexual acts with adolescents’ and this complaint does not therefore relate to adult pornography.

8. It is interesting to note that several members of the ECmHR dissented, arguing that ‘one may be left to wonder in the particular circumstances of this case if a pornographic video film depicting homosexual acts for some one hundred and twenty minutes to the accompaniment of protracted moaning is indeed what the founding fathers of the Convention understood by freedom of expression’ (Scherer v Switzerland 1993, dissenting opinion of Mr E. Busuttil, joined by Mr A. Weitzel and Mrs J. Liddy, as regards Article 10 of the Convention).

9. Lochrie v the United Kingdom, No. 22614/93, interim resolution, 15 May 1997; and Moody v the United Kingdom, No. 22613/93, interim resolution, 15 May 1997.

10. See also Otto-Preminger-Institut v Austria (1994).

11. In a dissenting opinion, Judge Spielmann (subsequently President of the ECtHR) stated that he did not understand the reasoning that it was necessary to confiscate artworks in one year but not necessary in another year when they could be returned to the artist and argued that, in light of this inconsistency in the legitimate aim pursued by the authorities, there had been a violation of Article 10 (Müller and Others v Switzerland 1988, dissenting opinion of Judge Spielmann).

12. The British Board of Film Classification (BBFC), the body authorized to issue classification certificates to video works in the United Kingdom (by virtue of the Video Recordings Act 1984), had refused to certify the film because of ‘the mingling of religious ecstasy and sexual passion [which] becomes subject to the law of blasphemy […] if the manner of its presentation is bound to give rise to outrage at the unacceptable treatment of a sacred subject’. The BBFC's decision was not based on an assessment of ‘sexual imagery’ alone, but on the ‘major proportion of the work's duration that sexual imagery is focused on the figure of the crucified Christ’, and it stated that if ‘the male figure were not Christ, the problem would not arise’ (Wingrove v the United Kingdom 1995, § 24). The common law offences of blasphemy and blasphemous libel were repealed in England and Wales by S.79 Criminal Justice and Immigration Act 2008.

13. This contrasts with the ECmHR's earlier decision in X. Ltd and Y. v the United Kingdom (1982), in which a publisher and editor of a magazine complained about his private prosecution for publishing a poem – which described Jesus Christ engaged in homosexual sexual acts with the Apostles and other men – and a drawing that illustrated it. The ECmHR deemed the application inadmissible, stating that if ‘it is accepted that the religious feelings of the citizen may deserve protection against indecent attacks on the matters held sacred by him, then it can also be considered as necessary in a democratic society to stipulate that such attacks, if they attain a certain level of severity, shall constitute a criminal offence triable at the request of the offended person’. The expressed reason for departing from this view in Wingrove v the United Kingdom was that ‘[i]t is unlikely that the contents of the applicant's video would be on display to the general public [and] [i]t is also unlikely that members of the public could unintentionally find themselves viewing the video in the same way as they might […] browse through magazines. A person would have to make a conscious decision to view the applicant's video, and it is at least unlikely, having regard to the title and the fact that it was intended to label the video's contents, that it would have been seen by anyone who was unaware of the probable subject matter of the film’ (1995, § 67).

14. In a subsequent and unrelated judgment, Judge Bonello stated that the ‘novel would only fail to qualify as fierce pornography through the most lavish disregard of contemporary standards of morality’ and criticized the decision to ‘[save] that smear of transcendental smut on the ground that it formed part of European cultural heritage’ (Lautsi and Others v Italy 2011, concurring opinion of Judge Bonello).

15. As a result of Article 1 of Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms (CETS No. 213), the Preamble of the ECHR will have the following new recital added: ‘Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention’. The impact of this new recital is the subject of debate: the UK government, on whose initiative the Brighton Declaration was made (High Level Conference on the Future of the European Court of Human Rights, Brighton, 19 and 20 April 2012) and from which Protocol 15 was developed, has claimed that enshrining the principle of the margin of appreciation in the ECHR reminds the ECtHR that it ‘should not routinely overturn the decisions made by national authorities [and] respect different solutions and different approaches between states as being legitimate’ (Ministry of Justice 2012); by contrast, the ECtHR regards the recital as merely reflecting and maintaining the approach developed in its own jurisprudence, whereby the Strasbourg system is subsidiary to the implementation of the ECHR at the national level and exists to provide supervision of it, and has stated that ‘there clearly was no common intention of the High Contracting Parties to alter either the substance of the Convention or its system of international, collective enforcement’ (European Court of Human Rights 2013). Protocol 15 will enter into force when ratified by all states contracted to the ECHR; at the time of writing it has been signed by 21 states, out of which one state has ratified it.