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Pornography and the European

Convention on Human Rights
a

Paul Johnson
a

Department of Sociology, University of York, UK

Published online: 24 Jul 2014.

To cite this article: Paul Johnson (2014) Pornography and the European Convention on Human
Rights, Porn Studies, 1:3, 315-336, DOI: 10.1080/23268743.2014.927706
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Porn Studies, 2014

Vol. 1, No. 3, 315336, http://dx.doi.org/10.1080/23268743.2014.927706

Pornography and the European Convention on Human Rights

Paul Johnson*

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Department of Sociology, University of York, UK

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

Introduction
This article considers the jurisprudence of the European Court of Human Rights
(ECtHR) and the former European Commission of Human Rights (ECmHR) in
respect of adult pornography.1 It examines how the ECtHR and ECmHR have
interpreted the European Convention on Human Rights2 (ECHR) in respect of
issues relating to the possession, production or distribution of materials classified as
pornographic or obscene. The Strasbourg organs have often been required to
adjudicate a principal dispute that has long underpinned academic debates about
human rights and pornography: namely, whether a right to pornography should be
respected (Dworkin 1981) or curtailed (Dworkin and MacKinnon 1997) in liberal
democratic societies. However, unlike academic discourse, which frequently deploys
the blanket claim that pornography is a human rights issue to support arguments
for and against its legal regulation (see, for example, Reist and Bray 2012), the
Strasbourg organs have for decades been answering questions about human rights
and pornography on a case-by-case basis in relation to the concrete circumstances of
the issues and rights in question or, as the ECtHR puts it, in ways that are
practical and effective rather than theoretical or illusory (Airey v Ireland 1979,
24). In this article I critically examine Strasbourg jurisprudence and consider how it
has shaped practical human rights relating to pornography in Europe. In

*Email: paul.johnson@york.ac.uk
2014 Taylor & Francis

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conclusion, I suggest ways in which Strasbourg jurisprudence might be evolved to

further enhance human rights protection in the future.

The European Convention on Human Rights and the Strasbourg organs: a brief
background
The ECHR is an international human rights treaty that was drafted by the Council
of Europe in 1949, signed by its 14 Member States in 1950, and entered into force in
1953. As a regional human rights instrument, the ECHR guarantees rights to
individuals within Member States of the Council of Europe that were first set out in
the Universal Declaration of Human Rights adopted by the General Assembly of the
United Nations in 1948. Unlike the more expansive Universal Declaration, which
protects civil, political, economic, social and cultural rights, the ECHR focuses
predominantly on civil and political rights. The ECHR created two part-time
institutions to be its control machinery: the ECmHR and the ECtHR. The purpose
of the ECmHR was to determine the admissibility of applications brought by both
states and individuals and, where these were accepted, provide a mediating function
with a view to reaching a friendly settlement between parties. In cases where no
settlement could be reached, the ECmHR produced a report on the facts of the case
and expressed its opinion on whether a complaint amounted to a violation of the
ECHR. The ECmHRs report and opinion were then transmitted to the Committee
of Ministers of the Council of Europe and, where appropriate, to the ECtHR for
consideration. On its entry into force in 1998, Protocol 11 of the ECHR abolished
the ECmHR and established a full-time ECtHR to which all individuals in the 47
states of the Council of Europe have the right to directly petition.
Applications to the ECtHR and to the former ECmHR ostensibly involve an
individual or group of individuals complaining that the actions of a nation-state
violate rights guaranteed by the ECHR. In some cases, complaints will be about the
failure of states to fulfil positive obligations required by the ECHR to protect an
individual or group of individuals from the activities of other private (non-state)
actors or organizations. Individual complaints also often involve a range of other
actors, such as non-governmental organizations and pressure groups, who financially
underwrite complainants or make written submissions of support. The involvement
of such organizations and groups shows that whilst the ECtHR is often imagined as
a mechanism to adjudicate disputes between an individual and a state, there is
frequently a broader societal dimension to many of the complaints it receives. As
Hodson (2011) argues, the contemporary importance of the ECtHR is that it
increasingly provides a stage for political movements seeking to effect social and
legal change. Because human rights law can be an arena of transformative political
practice that disorients, destabilizes, and at times even helps destroy deeply unjust
concentrations of political, social, economic and technological power (Baxi 2002,
10), the ECHR has become a key prism through which political, social, economic
and technological disputes are considered. This broader social role is an aspect of
its judicial work that the ECtHR has long acknowledged. In Ireland v the United
Kingdom, the ECtHR stated that its:
judgments in fact serve not only to decide those cases brought before the Court but,
more generally, to elucidate, safeguard and develop the rules instituted by the

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Convention, thereby contributing to the observance by the States of the engagements

undertaken by them as Contracting Parties. (1978, 154)

And in Karner v Austria, the ECtHR went on to state that:

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Although the primary purpose of the Convention system is to provide individual relief,
its mission is also to determine issues on public-policy grounds in the common interest,
thereby raising the general standards of protection of human rights and extending
human rights jurisprudence throughout the community of Convention States. (2003,
26)

In the remainder of this article I consider how the Strasbourg organs have
interpreted the ECHR when determining issues on public-policy grounds in the
common interest in respect of adult pornography. In doing so, I focus on three
distinct rights protected by the ECHR that are most relevant to considering issues
relating to pornography: the right to freedom of expression contained in Article 10;
the right to respect for private life contained in Article 8; and the right to be free
from degrading treatment contained in Article 3.

Pornography and the right to freedom of expression

In this section I examine how the Strasbourg organs have approached the question of
whether the ECHR guarantees a right to possess, produce or distribute adult
pornography as a form of freedom of expression under Article 10 of the ECHR,
which provides that:
(1) Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers. This
Article shall not prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties
as are prescribed by law and are necessary in a democratic society, in the
interests of national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health or morals,
for the protection of the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for maintaining the
authority and impartiality of the judiciary.
Like the other qualified rights of the ECHR (Articles 811), Article 10 specifies that
a public authority may only interfere with an individuals right to freedom of
expression when such interference is prescribed by law, pursues one of a number of
legitimate aims and is necessary in a democratic society. To determine whether a
restriction of a right is necessary in a democratic society, the ECtHR will consider if
it addresses a pressing social need and, in doing so, strikes a proportionate balance
between the means employed and aim sought to be realized. Contracting states are
afforded a margin of appreciation (discretion) but the extent of this will be

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determined by an assessment of whether the reasons provided by a government for

any interference are relevant and sufficient.
Article 10 is highly relevant to a consideration of pornography because, since its
earliest judgments, the ECtHR has consistently held that freedom of expression is
one of the essential foundations of a democratic society defined by pluralism,
tolerance and broadmindedness and is applicable to information and ideas that
offend, shock or disturb the State or any sector of the population (Handyside v the
United Kingdom 1976, 49). However, in respect of the legitimate aims enumerated
in Article 10(2) for which a state may proportionately curtail freedom of expression,
there is evidence to suggest that the Strasbourg organs have regarded the inclusion of
the protection of morals to specifically relate to pornography. For example, in
Glasenapp v Germany, one member of the ECmHR stated that:
In my view paragraph 2 of Article 10 relates to limitations of the freedom of expression
which apply to everyone [] What is referred to there are interferences aimed at the
form and contents of the opinion expressed. It is with reference to specific opinions and
information that the different aims were drafted, e.g. national security for military and
political secrets; morals for pornography; the protection of the reputation or rights of
others for libel etc. (1984, concurring opinion of Mr Trechsel)

Understood this way, then, the protection of morals is specifically included in

Article 10(2) to allow the state to place limitations on freedom of expression when it
takes the form and content of pornography.
When examining existing Article 10 jurisprudence it is important to note that,
because the majority of states contracted to the ECHR no longer criminalize the
simple possession of adult pornography, the Strasbourg organs have rarely been
required to deal with complaints relating to alleged violations of freedom of
expression in respect of the individual possession of pornography. Although some
states have recently enacted legislation that criminalizes the possession of adult
pornography (such as Ukraine in respect of all pornography3 and the United
Kingdom in respect of extreme pornography4), this remains uncommon in the
majority of contracting states. In X. v Austria (1964) the ECmHR did consider a
complaint by an applicant who, incarcerated in a penitentiary at the time of lodging
his application, complained under Article 10 about a disciplinary sanction imposed
on him by prison authorities (two days of solitary confinement with hard bed) after
being found in possession of pornographic drawings. The ECmHR concluded that
in executing a custodial sentence the authorities were entitled to place limitations on
certain rights and that the punishment imposed on the applicant did not exceed the
qualifications set out in Article 10(2).5 However, this case is atypical and the
Strasbourg organs have rarely considered the right to freedom of expression in
respect of interferences with the simple possession of adult pornography. Rather,
Article 10 jurisprudence has evolved, as I discuss below, through consideration of a
number of complaints relating to state regulation of the production and distribution
of materials deemed pornographic or obscene.
Establishing the foundations of Article 10 jurisprudence in the 1970s
The foundations of Article 10 jurisprudence relating to pornographic or obscene
materials can be traced to two decisions issued by the ECmHR on consecutive days

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in April 1974. However, a key aspect of these decisions is that, whilst they have
underpinned the development of the principle framework for subsequent considerations of pornography in Strasbourg, neither involved complaints about interferences
with materials containing visual representations of sex. In the first of these decisions
(Handyside v the United Kingdom 1974), the ECmHR declared admissible a complaint about a prosecution under obscenity law for the production and distribution
of a childrens book. In the second decision (X v Austria 1974) the ECmHR declared
inadmissible a complaint about the seizure under obscenity law of a book produced
for adults.
The applicant in Handyside v the United Kingdom, a publisher, complained about
the seizure of copies of an English-language version of a Danish book, The Little
Red Schoolbook, in April 1970 that he planned to publish and his subsequent
conviction under the Obscene Publications Acts (OPA) 1959/1964. The Schoolbook
did not contain imagery regarded as pornographic, but it did contain information
relating to pornography (in a 26-page section covering sex that included subsections such as masturbation, orgasm, intercourse and petting, contraceptives, wet
dreams, menstruation, and child-molesters or dirty old men) and stated:
Porn is a harmless pleasure if it isnt taken seriously and believed to be real life.
Anybody who mistakes it for reality will be greatly disappointed. But its quite possible
that you may get some good ideas from it and you may find something which looks
interesting and that you havent tried before. (Handyside v the United Kingdom 1975,
36)

The domestic English courts considered that this statement created the real
likelihood that a substantial number of children would feel it incumbent upon
them to look for pornography and participate in the practices that it depicted. This
was a crucial aspect of the English courts reaching the conclusion that the book
would, contrary to the OPA 1959/1964, tend to deprave and corrupt a significant
number of those children who came into contact with it.
The applicant complained that the action taken against him by the domestic
authorities breached a range of his rights under the ECHR including his right to
freedom of thought, conscience and religion (Article 9) but the ECmHR only
deemed admissible his complaint under Article 10 and Article 1 of Protocol No. 1
(protection of property) (Handyside v the United Kingdom 1974). In respect of the
Article 10 complaint, the ECmHR held by a majority that it was satisfied that the
interference with the publication of the book of which the applicant complains was
necessary for the protection of morals of young persons in a democratic society and
that the authorities has acted reasonably and in good faith and within the discretion
afforded to member states (Handyside v the United Kingdom 1975, 157). Among
the minority voters, several members of the ECmHR filled dissenting opinions that
paid particular attention to the obscene nature of the Schoolbook. For example,
three members compared the tame content of the Schoolbook with the moral
standards prevailing in the United Kingdom, in which children are exposed to
television portraying pornographic, erotic, sadistic or gratuitously violent scenes, to
argue that the interference with the applicants Article 10 rights was unnecessary in a
democratic society (Handyside v the United Kingdom 1975; dissenting opinion of
M. M. Kellberg, Nrgaard and Trechsel). In its judgment, the ECtHR explicitly

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rejected this argument, stating that the comparison was not relevant since the
Schoolbook was directly aimed at children whilst the other material was not
(Handyside v the United Kingdom 1976, 56).
In approaching the question of whether the applicant in Handyside had suffered a
violation of his Article 10 rights, the ECtHR stated that the machinery of protection
established by the Convention is subsidiary to the national systems safeguarding
human rights and that the Convention leaves to each Contracting State, in the first
place, the task of securing the rights and liberties it enshrines (Handyside v the
United Kingdom 1976, 48). The ECtHR noted that this was particularly the case in
respect of Article 10(2) because:
it is not possible to find in the domestic law of the various Contracting States a uniform
European conception of morals. The view taken by their respective laws of the
requirements of morals varies from time to time and from place to place [] By reason
of their direct and continuous contact with the vital forces of their countries, State
authorities are in principle in a better position than the international judge to give an
opinion on the exact content of these requirements. (Handyside v the United Kingdom
1976, 48)

In other words, it is for the national authorities to make the initial assessment of
the reality of the pressing social need implied by the notion of necessity in Article
10(2), and this therefore leaves to the Contracting States a margin of appreciation
(Handyside v the United Kingdom 1976, 48). The ECtHR concluded that within the
margin of appreciation available to them:
Contracting States have each fashioned their approach in the light of the situation
obtaining in their respective territories; they have had regard, inter alia, to the different
views prevailing there about the demands of the protection of morals in a democratic
society. (Handyside v the United Kingdom 1976, 57)

Given the margin of appreciation available to states to determine what restrictions

are necessary in a democratic society, the United Kingdoms interference with the
applicants Article 10 rights did not amount to a violation of the ECHR.6
In contrast to Handyside, in X. v Austria (1974) the ECmHR deemed inadmissible
a complaint about the seizure under obscenity law of a publication aimed at adults.
The applicant, a publisher in the Federal Republic of Germany, complained about the
confiscation of a book and several prospectuses that he had tried to send to a person
in Austria. The book, The Lascivious Pastors Wanton Niece, was seized under
Federal Law in force at the time (Act of 31 March 1950 concerning the suppression of
obscene publications and the protection of minors against the dangers of immorality,
also called Pornographiegesetz). The applicant complained to the ECmHR that the
seizure of the book constituted a violation of his Article 10 rights because, although
he was aware that the right to freedom of expression is subject to limitations, the
Austrian courts have wrongly interpreted the [] term obscene [and] have thereby
exceeded the limitations (X. v Austria 1974). The applicant argued that moral is an
ethical value which changes with the time, e.g. a photo of a naked woman on the front
page of a periodical would have shocked people in 1950 while nowadays such
representations are frequent and commonly tolerated (X. v Austria 1974). In rejecting
the complaint, the ECmHR stated that it did not consider it necessary to examine in

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detail the actual contents of the book in question as the decision of the domestic court,
which the applicant had submitted, cites various passages from it, and finds that they
at least were not justified as having artistic or scientific purposes and that the title of
the book speaks for itself (X. v Austria 1974).
Although Handyside v the United Kingdom and X. v Austria differ substantively
(in their respective focus on publications aimed at children and adults) and
procedurally, the Strasbourg organs ultimately reached the same conclusion in
both cases: the ECmHR and the ECtHR deferred to the margin of appreciation of
contracting states in respect of the regulation of materials deemed obscene or
pornographic. Neither applicant in Handyside or X. were able to convince the
Strasbourg organs that the actions taken against them violated the principle of
proportionality which is implicit to the concept of necessity contained in Article
10(2). In rejecting the complaints, the Strasbourg organs established the principle
that contracting states have wide discretion to enact and enforce laws to classify
particular materials as pornographic or obscene and regulate their production,
distribution and sale. Subsequent to Handyside and X., the Strasbourg organs have
dealt with a number of complaints about the enforcement of such laws, which fall
into two categories of cases relating to adult pornography (sex works) and art. As I
show below, the principles established by the Strasbourg organs in the 1970s in
respect of Article 10 have seen very limited evolution.
Selling and distributing adult pornography
In X. Company v the United Kingdom (1983) the ECmHR considered an application
by a publisher of illustrated magazines who complained about the seizure of over
150,000 magazines by the police pursuant to a warrant issued under the OPA 1959/
1964. In respect of the complaint made under Article 10, the ECmHR stated in brief
terms that the action taken against the applicant was prescribed by law and its
legitimate aim, the protection of morals, cannot be subject to any doubt
(X. Company v the United Kingdom 1983). In respect of whether the action was
necessary in a democratic society, the ECmHR stated that the magazines apparently
belonged to the category of so-called hard pornography [and] were so clearly
obscene that it was not even necessary to take any evidence on the moral standards
of the likely readers (X. Company v the United Kingdom 1983). In light of this, the
ECmHR decided (without giving details of its examination of the materials in
question) that it was for domestic authorities to both assess the moral standards in its
jurisdiction and determine the scope of the regulation necessary in a democratic
society to protect those moral standards.7 The ECmHR reached the same
conclusion in the similar facts case W. and K. v Switzerland (1991), in which it
stated that there can be no doubt that under normal circumstances convictions for
renting or selling pornographic videos correspond to a pressing social need and are
proportionate to the legitimate aim of protecting morals.
In Scherer v Switzerland, the ECmHR did show signs of evolution in its approach
to Article 10 when it upheld a complaint from the owner of a sex shop in Zurich for
homosexual persons who had been prosecuted for showing pornographic films to
paying customers (1993, 16). However, the ECmHRs willingness to find in favour
of the applicant was significantly influenced by the private nature of the activity
involved. The ECmHR noted that the nature of the applicants shop was not

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discernible from the street and that it was very unlikely that the projection room
adjacent to the shop would be visited by persons who were unaware of the subject
matter of the film (Scherer v Switzerland 1993, 62). In light of this, the ECmHR
concluded that in pursuing the legitimate aim of protecting morals there was no
justification for interfering with the applicants rights because no adult was
confronted unintentionally or against his will with the film (Scherer v Switzerland
1993, 65). As such, the ECmHR stated that the applicants conviction did not
correspond to a pressing social need and that the interference with his right to
freedom of expression was disproportionate to the aim pursued.8 A central factor in
the ECmHRs reasoning was the measures taken by the applicant to maintain a
strict separation between the sexual imagery and the public, and therefore its
decision cannot be seen to concern expression in the public sphere. Nevertheless, it is
unfortunate that, in light of the applicants death, the case was struck from the
ECtHRs list and no judgment on the merits was issued (Scherer v Switzerland 1994).
Whilst a positive judgment from the ECtHR would arguably not have reversed the
previous practice of deferring to a states margin of appreciation in respect of
regulating displays in the public sphere of material deemed obscene, it would have
evolved Article 10 jurisprudence in respect of displaying pornography on premises
open to the public that maintain high degrees of privacy.
In respect of such premises, the ECmHR considered three similar facts
complaints (Cybulski v the United Kingdom; Lochrie v the United Kingdom; Moody
v the United Kingdom), under Article 6 (right to a fair trial) and Article 10, about the
arrest and prosecution of shop assistants under the OPA 1959/1964 after police
officers seized a quantity of sexually explicit magazines and videos from
the bookshops where they worked. The applicants were all acquitted at trial but
the same trial judge on each occasion refused to award them costs. Although juries
had determined in each case that the materials in question were not obscene, the
judge used his discretion to refuse to award the applicants costs on the basis that
[t]hose who deal in this kind of material do so at their peril (Cybulski v the United
Kingdom 1997). The applicants complained that the refusal to grant them costs
amounted to a penalty in breach of Article 10 because it was not necessary in a
democratic society (Lochrie v the United Kingdom 1995) and that it would have a
deterrent effect on those who own and manage bookshops, thus imposing
unnecessary restriction on freedom of expression (Moody v the United Kingdom
1995). In two of these cases the ECmHR expressed the opinion that there had been a
violation of Article 6 (Lochrie v the United Kingdom 1996; Moody v the United
Kingdom 1996), and this was upheld by the Committee of Ministers of the Council of
Europe.9 However, in both of these cases the ECmHR determined that it was not
necessary to consider the complaint under Article 10. No consideration was given to
the substance of the third complaint (Cybulski v the United Kingdom 1997) because
of a friendly settlement reached between the parties in light of the previous two
decisions. These cases show that, although the Strasbourg organs were prepared to
recognize the complaints under Article 6, they would not consider the issue as a
matter of freedom of expression.
The ECmHR continued its approach to Article 10 in Hoare v the United
Kingdom (1997) when it declared inadmissible a complaint about a prosecution
under the OPA 1959/1964 for publishing and distributing pornographic material.
The applicant, who ran a mail-order business and advertised goods for sale in a

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national newspaper, argued that whilst the video cassettes he published may be
pornographic or obscene in the technical sense of the law, the restriction of his
freedom of expression was disproportionate as only those who shared his opinions
would respond to the advertisements published in the newspaper, and subsequently
purchase videos (Hoare v the United Kingdom 1997). The ECmHR stated that,
whilst the applicant had gone to considerable lengths to prevent cassettes from
falling into the wrong hands, it is in the nature of video works that once they
have been distributed, they can, in practice, be copied, lent, rented, sold and viewed
in different homes, thereby escaping any form of control by the authorities (Hoare v
the United Kingdom 1997). Therefore, the ECmHR concluded that where obscene
video cassettes were distributed to a limited circle of viewers but where there was no
further control over them and where no artistic merit is claimed for the works, a
conviction for publishing obscene works is proportionate within the meaning of
Article 10 (Hoare v the United Kingdom 1997).
In Perrin v the United Kingdom (2005) the ECtHR continued the approach of
the ECmHR by declaring inadmissible a complaint about a conviction under the
OPA 1959/1964 for publishing, on a free preview page of a website (of which the
applicant was a majority shareholder), images depicting people covered in faeces,
coprophilia, coprophagia and men involved in fellatio. The ECtHR rejected the
complaint that both the applicants conviction and length of prison sentence
(30 months) constituted an interference with his right to freedom of expression that
was unnecessary in a democratic society. In doing so, the ECtHR paid attention to
the fact that the web page in respect of which the applicant was convicted was freely
available to anyone surfing the internet and that, instead of ensuring that none of
the photographs were available on the free preview page, he chose to ensure their
visibility because he hoped to attract more customers (Perrin v the United Kingdom
2005). However, although the applicants failure to adequately prevent consumption
of the images by anyone was important to the ECtHRs decision, a more critical
factor was the margin of appreciation it afforded to the state. For example, in respect
of the length of the applicants prison sentence, the ECtHR stated that in fixing it the
domestic courts based their assessment on the demands of the protection of morals
for which they are granted a wide margin of appreciation (Perrin v the United
Kingdom 2005). In this respect, the ECtHR also noted that the expression in question
was purely commercial and there is no suggestion that it contributed to any public
debate on a matter of public interest or that it was of any artistic merit and, in light
of this, the applicants conviction cannot therefore be said to engender any
obviously detrimental chilling effect (Perrin v the United Kingdom 2005). The
decision in Perrin shows that Strasbourg jurisprudence is largely undisturbed by the
Internet age and that, in respect of pornography, contracting states are afforded
wide discretion to determine both the domestic standard of morals and the measures
required to protect them.
The question of artistic merit
The reference to artistic merit in Hoare v the United Kingdom and Perrin v the
United Kingdom suggests that Article 10 may provide greater protection to art
regarded by national authorities as pornographic or obscene. However, in practice, it
has often proved difficult to persuade the Strasbourg organs to protect freedom of

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expression on the grounds that a work has important artistic merit (for an extensive
discussion, see Kearns 2012). For example, in Mller and Others v Switzerland (1988)
the ECtHR considered a complaint about the confiscation of three pieces of artwork
from a public exhibition and the subsequent prosecution of 10 artists participating in
the exhibition on charges of obscenity. The artworks were seized on grounds that
they were in violation of Article 204 of the Swiss Criminal Code, which prohibited
obscene publications and required that they be destroyed. The original prosecutor
also considered that one of the three pictures infringed freedom of religious belief
and worship within the meaning of Article 261 of the Swiss Criminal Code. The
applicants were convicted and subject to a fine. The artworks were not destroyed
after their confiscation and were returned several years later to the artist who
produced them. The ECtHR considered separately the issue of the convictions and
the confiscation of the works. In respect of the convictions, the applicants argued
that although the paintings reflected a conception of sexuality that was at odds with
the currently prevailing social morality, they had symbolical meaning that
required protection (Mller and Others v Switzerland 1988, 31). The ECtHR stated
that, having inspected the original paintings, it did not find unreasonable the view
taken by the Swiss courts that those paintings, with their emphasis on sexuality in
some of its crudest forms, were liable grossly to offend the sense of sexual propriety
of persons of ordinary sensitivity and that, given the margin of appreciation left to
contracting states, the Swiss courts were entitled to consider it necessary in a
democratic society to imposed a fine upon the applicants to meet the legitimate aim
of protecting morals (Mller and Others v Switzerland 1988, 36).10 What is striking
about this is that, although the ECtHR examined the artworks in question, it
provided no methodology and gave no justification for its conceptualization of
which representations constitute the crudest form of sexuality offensive to those of
ordinary sensitivity. The ECtHR took a similar approach in determining that the
confiscation of the artworks was necessary in a democratic society to protect others.11
In Wingrove v the United Kingdom the ECtHR continued the practice of
deferring to national authorities to determine the scope of moral regulation in
respect of artistic works depicting sexual acts. The applicant complained about the
refusal of a classification certificate under the Video Recordings Act 1984 that he
required to make a video work publically available. The video, Visions of Ecstasy,
depicted an actress dressed as a nun (intended to be St Teresa) and showed her, inter
alia, writhing in exquisite erotic sensation and intense erotic arousal in scenes that
included representations of Christ (Wingrove v the United Kingdom 1995, 20). The
ECmHR reached the conclusion that the refusal of the national authorities to issue a
certificate to the work, on the grounds that it was blasphemous,12 did constitute a
violation of Article 10 because the work in question would not be on display to the
general public and the:
fact that certain Christians, who had heard of the existence of the video, might be
outraged by the thought that such a film was on public sale and available to those who
wished to see it, cannot [] amount to a sufficiently compelling reason to prohibit
its lawful supply. (Wingrove v the United Kingdom 1995, 6768)13

However, the ECtHR disagreed with the opinion of the ECmHR and restated its
established principle that a margin of appreciation is available to states to regulate

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freedom of expression in the sphere of morals because, by virtue of their direct and
continuous contact with the vital forces of their countries, they are in a better
position than international judges to give an opinion on what is necessary in their
democratic societies (Wingrove v the United Kingdom 1996, 58). Furthermore, in
light of the fact that video works can be copied, lent, rented, sold and viewed in
different homes, thereby easily escaping any form of control by the authorities, the
ECtHR held that it was not unreasonable for the national authorities [] to
consider that the film could have reached a public to whom it would have caused
offence (Wingrove v the United Kingdom 1996, 63). The ECtHR concluded that the
state had not overstepped its margin of appreciation in regulating the freedom of
expression of the applicant and that there was therefore no violation of Article 10.
The use of the margin of appreciation doctrine by the ECtHR in similar facts
cases has shown some development in recent years. In Vereinigung Bildender
Knstler v Austria (2007) the ECtHR upheld a complaint about a ban imposed by
domestic authorities on displaying a painting that consisted of a collage of various
public figures, including Mother Teresa, cardinal Hermann Groer and Austrian
Freedom Party politicians Mr Haider and Mr Meischberger. The painting depicted
various sexual acts and, in particular, showed Mr Meischberger gripping the
ejaculating penis of Mr Haider while at the same time being touched by two other
Austrian Freedom Party politicians and ejaculating on Mother Teresa. The ECtHR
stated that the painting amounted to a caricature of the persons concerned using
satirical elements and that satire is a form of artistic expression and social
commentary [that], by its inherent features of exaggeration and distortion of reality,
naturally aims to provoke and agitate (Vereinigung Bildender Knstler v Austria
2007, 33). The ECtHR also placed significant emphasis on the political nature of
the painting, noting that it could be understood to constitute some sort of counterattack against the Austrian Freedom Party (Vereinigung Bildender Knstler v
Austria 2007, 34). It was therefore the social commentary and political nature of
the work that arguably persuaded the majority of ECtHR judges to uphold the
complaint and find a violation of Article 10. Similarly, in Akda v Turkey (2010) the
ECtHR upheld a complaint by a publisher about the confiscation of a book and his
conviction for publishing it. The book, The Eleven Thousand Rods by Guillaume
Apollinaire, which the publisher made available in a Turkish translation, was
deemed by the national authorities to be of an obscene or immoral nature contrary
to domestic law. The ECtHR upheld the applicants complaint on the grounds that
the book in question was part of the European literary heritage (Akda v Turkey
2010, 30) and, for that reason, the contracting state did not have the scope to
prevent it from being made available in a local language.14 Although the judgments
in Vereinigung Bildender Knstler v Austria and Akda v Turkey are significant, they
evolve ECHR jurisprudence on obscenity in a limited way since materials regarded
as purely pornographic or obscene (sex works) would not conform to the principles
established in these judgments in respect of freedom of expression.
Pornography and the right to respect for private life
In contrast to the claim that materials deemed pornographic or obscene should be
protected as a form of expression, complainants to Strasbourg have often invoked
Article 8 of the ECHR, which provides that:

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(1) Everyone has the right to respect for his private and family life, his home and
his correspondence.
(2) There shall be no interference by a public authority with the exercise of this
right except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or the
economic well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the rights and
freedoms of others.
Article 8 protects four distinct rights relating to private life, family life, home and
correspondence. Given that, as noted above, the majority of contracting states no
longer criminalize the simple possession of pornography, there have been few
complaints focusing specifically on interferences with the right to respect for ones
home. Although in Chappell v the United Kingdom (1989) the applicant complained
about a violation of his right to respect for private life and home when his
business premises (from which he produced and distributed sexually explicit films)
were searched and materials seized, this was because one room of the premises was
used by the applicant as a bedroom. However, in the majority of complaints relating
to pornography brought under Article 8, applicants have utilized its private life limb.
In deciding whether an interference with private life constitutes a violation of the
ECHR, the ECtHR considers (in a similar way to Article 10) whether the
interference is in accordance with the law, pursues a legitimate aim, and is necessary
in a democratic society. No interference will be regarded as necessary in a
democratic society unless it answers a pressing social need and, in particular, is
proportionate to the legitimate aim pursued (Smith and Grady v the United Kingdom
1999, 87). In Strasbourg jurisprudence, the concept of private life is not limited to
activities that take place in the domestic home or when an individual is separated
from the public sphere. The ECmHR determined that:
For numerous anglo-saxon and French authors the right to respect for private life is
the right to privacy, the right to live, as far as one wishes, protected from publicity []
In the opinion of the Commission, however, the right to respect for private life does not
end there. It comprises also, to a certain degree, the right to establish and to develop
relationships with other human beings, especially in the emotional field for the
development and fulfillment of ones own personality. (X. v Iceland 1976)

Similarly, the ECtHR has held that:

it would be too restrictive to limit the notion [of private life] to an inner circle in which
the individual may live his own personal life as he chooses and to exclude therefrom
entirely the outside world not encompassed within that circle. Respect for private life
must also comprise to a certain degree the right to establish and develop relationships
with other human beings. (Niemietz v Germany 1992, 29)

In light of this, the right to respect for private life could be said to encompass the
possession, production and distribution of adult pornography if such activities are
fundamental (as some would argue they are) to the development and fulfilment of an
individuals personality and a key way in which he or she establishes relationships
with others. Furthermore, if pornography is accepted as a most intimate aspect of

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private life, then it follows from ECtHR jurisprudence that there must exist
particularly serious reasons before interferences on the part of the public authorities
can be legitimate (Dudgeon v the United Kingdom 1981, 52). In practice, however,
the Strasbourg organs have not taken this view of private life and have not upheld
complaints relating to pornography under Article 8.

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Pornography and private life in practice

In Reiss v Austria (1995) the ECmHR considered a complaint by the owner of a
bar in Vienna who was convicted, under domestic law regulating the publication or
distribution of pornography for profit, after one of his employees played, in his
absence, a pornographic film on a monitor in the bar. The applicant complained
that his conviction was a violation of his right to respect for private life. In this
respect, the ECmHR gave regard to the fact that customers to the bar were
mainly male homosexuals who, when seeking entrance to the bar have to ring at
the door, [and] minors under 18 years are not admitted (Reiss v Austria 1995).
However, the ECmHR dismissed the complaint on the grounds that it was
difficult to accept that the showing of the video cassettes at issue on the
applicants premises in his absence formed part of his private life or of a business
activity which cannot be separated therefrom (Reiss v Austria 1995). Crucially, the
ECmHR considered decisive that the offence the applicant was convicted of,
namely the public showing of obscene video cassettes for the purpose of profit
making, by its nature had nothing to do with the applicants own private life
(Reiss v Austria 1995). Excluding the public showing of obscene video cassettes for
the purpose of profit from the ambit of private life is significant given that the
ECtHR had earlier determined that there was no reason to exclude activities of a
professional or business nature from the concept of private life (Niemietz v
Germany 1992, 29). In reaching that conclusion, the ECtHR had established that
respect for private life must also comprise to a certain degree the right to establish
and develop relationships with other human beings and that it is in the course of
their working lives that the majority of people have a significant, if not the
greatest, opportunity of developing relationships with the outside world (Niemietz
v Germany 1992, 29). Arguably, therefore, the decisive issue determining the
decision in Reiss v Austria was not that the activity in question took place on a
business premises or was done in the pursuit of profit, but, rather, that it involved
obscene materials. The ECmHRs decision shows that, although the Strasbourg
organs had developed an expansive notion of private life, they would not regard
pornography as falling within its ambit.
In the more recent case of Pay v the United Kingdom (2008) the ECtHR,
although declaring the complaint inadmissible, demonstrated the potential for
interferences with the production and distribution of pornography to be successful
under Article 8. The applicant had been suspended and dismissed from his job as a
probation officer with responsibility for the treatment of sex offenders after his
employers discovered that he: was a member and director of an organization that
made and supplied products connected with BDSM; organized BDSM events and
performances; and had appeared on a number of websites which advertised various
events and included photographs of the applicant and others, semi-naked, performing acts which the accompanying text indicated had taken place at a local private

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members club and involved male domination over submissive women (Pay v the
United Kingdom 2008). A key reason given for the applicants dismissal from
employment was that the pictures in which he featured were soft pornography and
depicted acts which were degrading to women and that the activities they showed
were indecent and exploitative (Pay v the United Kingdom 2008). Although it was
accepted that neither the photographs nor the activities they depicted were contrary
to English law, the probation authorities considered the nature of the acts shown in
the internet photographs and the fact that this material was in the public domain
was incompatible with [the applicants] position as a probation officer (Pay v the
United Kingdom 2008). The applicant complained under a number of ECHR articles
but the ECtHR focused principally on the question of whether the activities in
question fell within the scope of private life. The applicant claimed that the activities
in question were an important part of his sexual expression and sexual orientation
and that the public performance aspect [] was a fundamental part of his sexual
expression, rather than an adjunct to it (Pay v the United Kingdom 2008). However,
he also emphasized the private dimension of the activities in question by stressing
that they took place in a private club, to which access was limited, and the
environment was one of shared sexual expression and, furthermore, he had worn a
mask during his performances, used a stage name and had not authorised the taking
or diffusion of photographs (Pay v the United Kingdom 2008).
In considering the admissibility of the complaint in Pay v the United Kingdom
(2008), the ECtHR stated that the activities in question could give rise to doubts as
to whether the applicants activities may be said to fall with the scope of private life.
However, placing considerable emphasis on the fact that the applicants performances took place in a nightclub which was likely to be frequented only by a selfselecting group of like-minded people and that the photographs of his act which were
published on the internet were anonymised, it was prepared to proceed on the
assumption, without finally deciding, that Article 8 is applicable and that, as such,
the dismissal of the applicant from his employment for engaging in such activities
may be said to amount to an interference with his rights under that Article (Pay v
the United Kingdom 2008). However, in considering whether the applicants
dismissal was justified under Article 8(2) and, specifically, whether it was necessary
in a democratic society, the ECtHR placed great emphasis on the fact that, whilst the
dismissal of a specialist public servant is a very severe measure, an employee owes to
his employer a duty of loyalty, reserve and discretion (Pay v the United Kingdom
2008). In this respect, the ECtHR stated that, given that the applicants job involved
working closely with convicted sex offenders who had been released from prison, it
was important that he maintained the respect of the offenders placed under his
supervision and also the confidence of the public in general and victims of sex crime
in particular (Pay v the United Kingdom 2008). Although the ECtHR stated that the
applicant may be correct in thinking that consensual BDSM role-play, of the type
depicted in the photographs [], is increasingly accepted and understood in
mainstream British society, and emphasized that the hallmarks of a democratic
society include pluralism, tolerance and broadmindedness, it placed more importance on the sensitive nature of the applicants work with sex offenders (Pay v the
United Kingdom 2008). The ECtHR stated that it was the applicants failure to curb
even those aspects of his private life most likely to enter into the public domain that
meant his dismissal from work was proportionate and therefore his complaint was

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inadmissible. Leaving aside the issue of the process by which the ECtHR reached its
admissibility decision specifically that, given its view that Article 8 was applicable,
it should have declared the complaint admissible and proceeded to a consideration of
the merits the crucial conclusion is that a complaint under Article 8 was deemed
not to be admissible because the applicant had failed to prevent photographs of his
sexual activity (activity that took place in private and with consenting adults) to be
disseminated in a public forum. Whilst the ECtHR has recognized that an
investigation by an employer of an individuals sexual orientation, which included
the question of whether he had bought pornography, violated the right to respect for
private life (Lustig-Prean and Beckett v the United Kingdom 1999, 19), Pay shows
that Article 8 will not be applicable if an individual does not ensure that aspects of
their sexual practice remain purely private (A.D.T. v the United Kingdom 2000,
38). The emphasis of the ECtHR is that where manifestations of non-normative
sexuality, in the form of photographs, enter the public domain and disturb
mainstream sensibilities, Article 8 will provide no protection.
Pornography and degradation
A further aspect of the ECHR that is relevant to addressing issues related to
pornography is Article 3, which provides that:
No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.

Article 3 is an absolute and unqualified right that, because it has been invoked in a
wide range of complaints, has been relatively conceived and subjectively applied by
the Strasbourg organs depending on the context in which the actions complained
about occur and the effects they produce upon the applicant. From its earliest
decisions and judgments, the Strasbourg organs have recognized that whilst some
circumstances may encompass all of the aspects of Article 3, in other circumstances
one aspect of Article 3 may apply whilst another may not. For this reason, the
Strasbourg organs have developed interpretations of each aspect of Article 3. For
instance, the ECtHR has defined degrading treatment as that which is such to
arouse in the victim feelings of fear, anguish and inferiority capable of humiliating
and debasing them (Kuda v Poland 2000, 92). Or, expressed another way,
degrading treatment is that which humiliates or debases an individual, showing a
lack of respect for, or diminishing, his or her human dignity, or arouses feelings of
fear, anguish or inferiority capable of breaking an individuals moral and physical
resistance (Pretty v the United Kingdom 2002, 52). It is therefore clear that for
treatment to be deemed degrading under Article 3 it does not need to amount to
forms of torture or punishment, but can amount to actions that humiliate or
debase a person.
In respect of pornography, this aspect of Article 3 is relevant to those who seek
greater regulation of certain forms of sexual imagery on the basis of claims about
its potential to have adverse affects amounting to humiliation and debasement (for
example, Dines, Jensen, and Russo 1998). Given that the ECtHR recognizes that
states have a positive obligation under Article 3 to take measures designed to ensure
that individuals within their jurisdiction are not subjected to torture or inhuman or

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degrading treatment, including such ill-treatment administered by private individuals

(Z. and Others v the United Kingdom 2001, 73), it may be possible to complain about
the failure of a state to regulate certain forms of pornography (e.g. what is now termed
extreme pornography) that allegedly give rise to certain forms of treatment contrary
to Article 3. Furthermore, it may be possible to combine Article 3 with Article
14 (prohibition of discrimination) to argue that such treatment constitutes discrimination on prohibited grounds. The most obvious complaint would be about
discrimination on the grounds of sex where a link could be made, as in the Dworkin
and MacKinnon (1988) Model Antipornography Civil-Rights Ordinance, between
pornography and the discriminatory treatment of women in society but complaints
could also be made on other grounds, such as race or sexual orientation. Notwithstanding the evidential problems of establishing a link between the influence of
pornography on the behaviour of its consumers and the consequent impact on other
individuals, such a complaint would be compromised by the high threshold that the
Strasbourg organs have consistently maintained in respect of the minimum level of
severity required for any treatment to fall within the ambit of Article 3 (see: Ireland v
the United Kingdom 1978, 162). However, there is nothing to prevent an individual
from claiming to be a victim (within the meaning of Article 34 of the ECHR) because
they experience humiliation and debasement as a direct or indirect consequence of
pornography.
The right not to see pornography
One issue relevant to a consideration of pornography under Article 3 is whether
there is a right not to be directly exposed to it. There have been very few complaints
in this respect and, aside from unsuccessful complaints brought by parents about the
content of compulsory sex education in state schools and their childrens exposure to
it (Kjeldsen, Busk Madsen and Pedersen v Denmark 1976; Dojan and Others v
Germany 2011), which did not invoke Article 3, the Strasbourg organs have given
little consideration to whether individuals have a right not to see materials that they
regard as a pornographic. However, a relevant case in this respect is Toomey v the
United Kingdom (1999) in which the ECtHR considered a complaint by a male
applicant serving a life sentence after being convicted for committing serious assault.
Whilst on conditional release from prison, the applicant was recalled in light of
concerns about certain aspects of his behaviour and possessions, which included a
fetishist catalogue (Toomey v the United Kingdom 1999). After his re-incarceration
the applicant was considered for a Sex Offenders Treatment Programme that
involved, inter alia, a penile polygraph (PPG) assessment. In undertaking the PPG
assessment of which he was reticent but agreed to participate (Toomey v the United
Kingdom 1999) the applicant was put in a small room where, as well as two electrodes
that were attached to his left index and middle fingers, he was required to attach a
sensor clip to his penis and to leave his underpants and trousers removed throughout
the test. The applicant was then shown three categories of material: a set of slides
comprising nude images of young children, pubescent and adult males and females;
a set of video sequences depicting consensual sex, rape and non-sexual violence; and
a set of slides depicting young men and women in more erotic poses than in the first set
of slides, elderly naked women in relatively non-erotic poses and women in bondage
poses (Toomey v the United Kingdom 1999). The first and second categories of material

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were specially produced for the test and the third was obtained from soft-core
pornographic magazines such as could be openly and legally published in specialist
shops (Toomey v the United Kingdom 1999).
The applicant in Toomey claimed that the PPG tests constituted cruel, degrading
and inhuman treatment and torture contrary to Article 3. The ECtHR decided to
examine the applicants complaint in respect of the degrading treatment element of
Article 3 and reiterated that treatment will be considered degrading if it is such as to
arouse in the victim feelings of fear, anguish and of inferiority capable of humiliating
and debasing the victim. The ECtHR accepted that the applicants participation in
the tests was humiliating for him (Toomey v the United Kingdom 1999). In respect of
whether such humiliation amounted to degrading treatment within the meaning of
Article 3, the content of the images shown to the applicant during the PPG
assessment became crucial. The UK government argued that:
the images shown were of a type that might be publicised in the mass media and shown
on terrestrial television, they were not hard core pornography or images that might
cause offence in the minds of ordinary thinking people and they cannot be considered of
a form that was likely to offend the applicant, given the nature of the sexually explicit
fetish publication found in the applicants possession immediately prior to his recall.
(Toomey v the United Kingdom 1999)

The applicant contested this, arguing:

As to the Governments allegation that he should not have been shocked by the images
shown during the PPG tests, he points out that it is only in recent years that terrestrial
television was introduced into the prison system (he was in prison since 1983) and that
the fetish magazine to which the Government refer was not sexually explicit. Contrary
to the Governments suggestion, the applicant was appalled by the test and, in
particular, by the rape scene, of which crime he had been a victim in his late teenage
years. Moreover, the applicant considers it pertinent to note that the constant repeating
of images of a sexual nature will necessarily produce a reaction from a person who has
been locked up for approximately 14 years without female company or a sexual
relationship. (Toomey v the United Kingdom 1999)

The ECtHR reached the decision that, given all of the relevant circumstances of the
case (particularly the applicants history of offending and concerns about his
potential future offending), the PPG test did not amount to a form of degrading
treatment within the meaning of Article 3 and declared the complaint inadmissible.
Crucially, the ECtHR gave no consideration to the material that the applicant had
been exposed to during the PPG assessment which included images of rape and
bondage or its effect upon him. The ECtHR simply concluded that it was
satisfied that the authorities reasonably considered that a PPG evaluation was
necessary before deciding the appropriate future therapeutic treatment of the
applicant (Toomey v the United Kingdom 1999). The ECtHRs decision to deem
inadmissible a complaint by an applicant who was deliberately exposed to
pornographic material by a public authority whilst incarcerated can be interpreted
in two ways in relation to the potential for future complaints about pornography and
degrading treatment under Article 3. On the one hand, the ECtHRs focus on the
necessity of exposing the applicant in Toomey to pornographic images could be used
to argue that in the case of ordinary individuals (those not subject to criminal

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justice sanctions), for whom no comparable necessity exists, a failure to positively

prevent exposure to pornography could in some cases amount to degrading
treatment within the meaning of Article 3. On the other hand, the fact that the
applicant in Toomey was incarcerated at the time he was exposed to the pornography
could be taken to argue that in the case of free individuals, who possess a greater
capacity to exercise choice over whether or not to view pornographic images (and, in
this respect, see Muscio v Italy 2007), exposure to pornography will not readily
amount to degrading treatment contrary to Article 3.

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Conclusions and implications

A critical examination of existing ECHR jurisprudence leads to the inescapable
conclusion that it is significantly underdeveloped in respect of issues relating to adult
pornography. No complaint about interferences by a state with the possession,
publication or distribution of materials deemed pornographic or obscene, where
these take the form of sex works, has ever been successful. Although the ECtHR
has upheld a small number of complaints relating to interferences with materials
regarded by public authorities as obscene, this has only been in cases where there has
been a substantial artistic or political element to the works in question. Moreover,
no complaint about degrading treatment relating to pornographic materials has been
successful. A key aspect of all complaints relating to adult pornography is the extent
to which the ECtHR has consistently deferred to the margin of appreciation of
contracting states and, in doing so, failed to develop any general standards (Karner
v Austria 2003, 26) for ECHR rights in relation to adult pornography. The
amendment of the ECHR to include an explicit reference to the margin of
appreciation makes the future development of pan-European human rights
standards in this area (which depends upon closing the margin of appreciation of
contracting states in place of more robust supervision by the ECtHR) potentially
more difficult.15 Nevertheless, the implication of current Strasbourg jurisprudence in
respect of adult pornography is that the human rights guaranteed by the ECHR are
open to evolution in at least three ways.
First, for those concerned with enhancing the right to possess and exchange
forms of sexual imagery, there is potential to evolve Article 10 rights in respect of
freedom of expression. In the context of European states that continue to enforce
long-standing obscenity provisions, and in the light of new statutory provisions
criminalizing the simple possession of adult pornography (such as, for example,
extreme pornography), complaints could be made about interference with freedom
of expression. However, whilst there is a wide-ranging scholarly and political
literature on using law as a means to protect pornography as a form of freedom of
expression (for a discussion, see Easton 1994; Strossen 2000), no complaint to
Strasbourg in respect of sex works has ever been successful under Article 10.
Nevertheless, if European states seek to introduce enhanced forms of internet
regulation in the future in respect of pornography, the right to freedom of expression
guaranteed by the ECHR may provide an important platform to resist this.
Second, for those concerned with ensuring that the use of pornography be
respected as an aspect of private life, there is scope to evolve Article 8 rights to
heighten protection. Many would argue that in the context of European societies,
where electronic communication has disrupted the traditional divide between the

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public and private spheres (which enables individuals in domestic homes to procure,
produce and distribute pornography), there is a need to enhance the protection of
this intimate aspect of an individuals life. For example, those concerned with
resisting the regulation of individual possession of adult pornography (such as the
regulation of extreme pornography involving adults in the United Kingdom) may
consider redress under Article 8. This would require an evolution in Strasbourg
jurisprudence, in which contracting states have consistently been granted a wide
margin of appreciation to interfere with private life to meet the aim of the
protection of morals. Such an evolution seems unlikely in the near future in the
context of the recent resolution of the Parliamentary Assembly of the Council of
Europe (Resolution 1835 [2011]) calling on all member states to criminalize the
possession of violent and extreme pornography, including for personal use.
Third, for those concerned with addressing the effects of what is now frequently
called the pornification of contemporary societies (see Paasonen, Nikunen, and
Saarenmaa 2008) and the cultural harm that the proliferation of pornography
creates (McGlynn and Ward 2009), Article 3 offers scope for an evolution of rights.
In protecting individuals from forms of degradation, Article 3 provides a platform
from which a number of arguments about pornography could be made. For
example, a complaint could be made about the failure of a contracting state to
undertake sufficient positive measures to regulate the availability of particular
pornographic imagery (such as the depiction of rape or sexual violence). Such a
complaint would require a victim to demonstrate that the impact of pornography
either through exposure to it, or as a result of treatment by others exposed to it
amounted to degrading treatment within the meaning of Article 3. Given the high
threshold set by the ECtHR for Article 3 complaints, this may prove difficult.
However, in a political context in which the Council of Europe is recommending
increased regulation of violent and extreme pornography on the basis of claims that
it is degrading and harmful to womens dignity and their status in society
(Stuligrosz 2011), the failure of a state to take positive action to restrict such
pornography could be argued to give rise to treatment that is in violation of
Article 3.
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 Sderman 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.

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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 (Mller 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 BBFCs decision was not based on an assessment of sexual
imagery alone, but on the major proportion of the works 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 ECmHRs 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 applicants 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 applicants
video, and it is at least unlikely, having regard to the title and the fact that it was intended
to label the videos 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

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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.

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