Term and definition of pornographic materials
In German law, pornographic materials are writings, images, depictions, audio recordings, or other forms of representation that focus on sexual acts in a manner intended to arouse or satisfy sexual desire, and which may express a significant disregard for human dignity. They are primarily regulated in Sections 184 et seq. of the Criminal Code (StGB). The term “writing” is interpreted broadly and includes printed, handwritten, visual, and electronic media of various types.
Distinction from erotic materials
Not every content with sexual references is automatically pornographic in the criminal law sense. Erotic depictions that do not show explicitly sexual acts or do not restrict the depiction of sexuality exclusively to arousal—such as those allowing for artistic, documentary, or literary engagement—are not considered pornographic materials as defined by criminal law. The decisive factor is the overall effect of the work on an average observer.
Legal basis
Pornographic materials are comprehensively regulated under German law, particularly in connection with youth protection, criminal offenses, and within the context of media and publication law.
Criminal Code (StGB)
Section 184 StGB: Distribution of pornographic materials
According to Section 184 para. 1 StGB, the distribution, public provision, production, and offering of pornography without appropriate protective measures is a criminal offense. Section 184a StGB and the following sections regulate special forms of pornography, such as violent or animal pornography and child pornography.
Child and youth pornography (Sections 184b, 184c StGB)
The handling of child pornography (Section 184b StGB) and youth pornography (Section 184c StGB) is subject to particularly strict regulation under German law and is comprehensively prohibited. Mere possession of such materials is generally punishable.
Extended criminal liability provisions
Criminal law covers not only production and distribution, but also acquisition, possession, import, and export of pornographic materials. Penalties increase if certain groups of people (especially minors) are to be protected, or if particularly severe pornographic depictions are involved.
Youth media protection
Youth Protection Act (JuSchG)
In addition to criminal law provisions, the Youth Protection Act regulates the permissibility of distributing and allowing access to pornographic materials and depictions to persons under 18 years of age. Making such content available or accessible and displaying it to minors is prohibited.
Interstate Treaty on the Protection of Minors in the Media (JMStV)
The Interstate Treaty on the Protection of Minors in the Media regulates the handling of media harmful to minors, including pornographic content in broadcasting and telemedia (e.g., online services). Services featuring pornographic content may only be made accessible to adults, and age verification systems are mandatory.
Criminal consequences
Distribution, acquisition and possession
The distribution, publication, and possession of pornographic materials is generally prohibited under Sections 184 et seq. StGB if minors are given access or if other special protective provisions are violated. In the case of depictions involving children and adolescents, mere possession and retrieval are punishable, regardless of whether access is provided.
Penalties
Depending on the offense and the type of pornography, different penalties are prescribed. While “simple” pornography carries lower penalties, violent or child pornography offenses can result in lengthy prison sentences.
Media law aspects
Distribution via the Internet and new media
In the digital age, special rules apply to electronic media and online services. Pornographic materials may only be offered to adults. Internet providers are required to implement appropriate protective measures, such as age verification systems with effective identity and age checks.
Book trade, film, image carriers
The distribution of pornographic materials in physical retail (bookstores, video rental stores) or via mail order is subject to numerous restrictions. Such content may not be openly offered, must be stored separately, and acquisition must be effectively controlled.
Implications under intellectual property law
Pornographic materials are generally protected by copyright law if they reach the required level of originality and do not violate public morals. However, rights deriving from immoral works may be restricted under certain circumstances.
History of the term and international aspects
Historical development
The legislature considers pornography to be, among other things, a social phenomenon with a high capacity for change. The definition and assessment of the term “pornographic material” has evolved repeatedly in legislation and jurisprudence, especially under the influence of social values and technological developments.
International law
Internationally, there are significant differences regarding the definition and criminalization of pornographic materials. The European Union sets minimum requirements for the protection of minors and the fight against child pornography by means of directives. By comparison, in many countries depictions involving consensual adults are regulated more liberally than under German law.
Conclusion
Pornographic materials represent a complex concept in German law, encompassing numerous criminal, media, and youth protection regulations. The legislator’s primary aim is to protect children and young people as well as human dignity from degrading depictions. The legal classification and assessment of pornographic materials remains a dynamic area of regulation in light of technological developments and societal change.
Frequently asked questions
In which cases is possession of pornographic materials punishable?
In Germany, possession of pornographic materials is generally only punishable in certain clearly defined cases. The protection of children and adolescents is the primary concern. Under Section 184b of the Criminal Code (StGB), it is a criminal offense to possess, acquire, produce, or distribute child pornography. This includes all forms of media—images, videos, and digital files—depicting children in unnatural, sexually explicit poses. The same applies to youth pornography (Section 184c StGB), which covers individuals up to the age of 18. Mere possession of so-called adult pornography, that is, depictions involving exclusively adults and not containing any other criminal content (such as violent or coercive depictions), is generally not punishable for adults. However, criminal consequences can also arise if such materials are distributed without the required age labeling or made accessible to minors. Likewise, criminal law provisions apply to particularly serious forms of pornographic content, such as violent or animal pornography (Sections 184a, 184b, 184c StGB).
When is the distribution of pornographic materials legally relevant?
Under German law, the distribution of pornographic materials is generally punishable if they are made available to minors or if the respective content involves particularly serious forms of pornography, such as violent or animal pornography (Section 184a StGB), child pornography (Section 184b StGB), or youth pornography (Section 184c StGB). Restrictions also apply among adults: According to Section 184 para. 1 StGB, pornographic materials may not be made accessible to anyone under the age of 18, and may not be publicly accessible or distributed unless sufficient measures for youth protection have been taken (e.g., age verification systems on the internet). Distribution without appropriate youth or indexing protection under the Youth Protection Act (JuSchG) and the Interstate Treaty on the Protection of Minors in the Media (JMStV) is also punishable. Sending such materials by post or email to non-consenting recipients also regularly constitutes a criminal offense.
What penalties can be imposed for violations of the ban on child or youth pornography?
Violations of the prohibition on child or youth pornography are prosecuted extremely strictly in Germany. Under Section 184b StGB, possession, acquisition, or distribution of child pornography carries a prison sentence of one to ten years, and in less serious cases, at least three months. For youth pornography under Section 184c StGB, the range of punishment is up to three years’ imprisonment or a fine, and may be higher if committed commercially or by groups. Attempts are already punishable. For mere possession of so-called hard content (e.g., severe depictions of sexual abuse), penalties are generally even higher. Frequently, investigative measures such as house searches, seizure of communication technology, or pre-trial detention are additionally ordered.
What role does youth protection play in the distribution of pornography on the Internet?
Youth protection plays a central role in the distribution of pornographic content, especially on the Internet. According to the Interstate Treaty on the Protection of Minors in the Media (JMStV), pornographic content may not be made generally accessible. Providers must ensure that minors cannot access corresponding sites or files, for example through effective age verification systems. Violations of these regulations may be prosecuted as administrative offenses under Section 24 JMStV, or as criminal offenses in severe cases. The Telemedia Act (TMG) and the Network Enforcement Act (NetzDG) also contain provisions regarding illegal content on the internet, including pornographic depictions. Compliance with statutory requirements is regularly monitored and enforced by state media authorities.
What legal requirements apply to the production of pornographic materials?
For the lawful production of pornographic materials in the legal sense, it is crucial that all depicted persons have reached the age of 18 and participate voluntarily in the production. Every form of coercion or use of force, as well as the exploitation of dependent relationships, generally fulfills elements of offense, for example under Section 184e StGB (distribution, acquisition, and possession of extremely violent pornography) or Section 232 StGB (human trafficking). The consent of the persons involved must be documented, for example by proof of age and written consent declarations (so-called “model releases”). Failure to observe these requirements or the production of recordings of minors or content involving violence or coercion can result in severe criminal consequences, including several years of imprisonment.
What obligations apply to operators of websites with pornographic content?
Operators of websites offering pornographic content are required to implement extensive measures for youth and data protection. This includes, in particular, the use of effective technical means for age verification, such as identity checks using ID or credit card data. Publicly accessible areas must not contain pornographic content before age verification has taken place. Additionally, operators are required to provide information about youth protection officers (§ 7 JMStV) and to label content accordingly. Failure to comply with these requirements can result not only in civil claims but also in prosecution as administrative or criminal offenses. State media authorities conduct regular checks and may impose sanctions such as fines, blocking orders, or shutdown of the website.
Are there exceptions to the ban on certain pornographic materials for scientific, art historical, or other recognized purposes?
Yes, German law does provide for exceptions regarding certain acts concerning prohibited pornographic materials, particularly in scientific, art historical, research, or forensic contexts. These exceptions are expressly regulated in the relevant criminal law provisions (Section 184b para. 5 StGB, Section 184c para. 4 StGB): Possession, production, or distribution of child or youth pornography remains exempt from punishment if carried out exclusively for the purposes of research, education, forensics, or art, and if there is no risk of distribution. The intended use must always be clearly identifiable for one of these recognized purposes, and the content must be securely stored to prevent misuse. The existence of an exception must be examined and assessed in each case, if necessary by the public prosecutor’s office or the courts.
