Pornographic Writings: Legal Situation and Definition
Definition: What are ‘pornographic writings’?
In German law, the term ‘pornographic writings’ refers to certain media content that, in the sense of criminal law, falls under the category of pornography. The term ‘writing’ is to be understood in a broader sense and includes, in addition to classic print works such as books and magazines, pictorial representations, audio and data carriers, digital content, and other mediums. The decisive understanding is according to Section 11(3) of the German Criminal Code (StGB), under which ‘writings’ are not only written but also pictorial and audiovisual representations, provided they are suitable and intended to sexually arouse a person.
Pornographic writings are characterized by their primary purpose—the sexual arousal of the viewer. This includes representations of sexual acts in which the depiction of the sexual act is explicit or at the center. Works of art or scientific representations are not covered if their goal is not sexual stimulation.
Statutory Foundations and Regulatory Areas
Criminal Law Provisions
The handling of pornographic writings is primarily regulated in the Criminal Code. Key provisions include:
- Section 184 StGB – Distribution of Pornographic Writings:
This provision makes it a criminal offense to distribute, make publicly accessible, offer, transfer, solicit, or announce pornographic writings to minors. For adults, the regulations are more limited, except in particularly serious cases.
- Section 184b StGB – Distribution, Acquisition, and Possession of Child Pornography:
This already covers the possession, acquisition, production, or distribution of writings with child pornographic content, for which very strict penalties apply.
- Section 184c StGB – Juvenile Pornography:
The production and distribution of pornographic writings showing minors in sexual poses or acts are also considered criminal offenses.
Thus, while possession and use of pornographic writings between adults are generally permitted, possession, trade, or distribution to minors is criminally prosecuted. Particularly serious forms of pornography (e.g., child and juvenile pornography) are categorically prohibited.
Protection of Minors
A central concern of the legislator is the protection of minors from sexual content. In addition to the provisions of the Criminal Code, the Youth Protection Act (JuSchG) in Germany regulates the availability of writings that are likely to impair or endanger the development of children and adolescents:
- Section 12 JuSchG – Media with Content Harmful to Minors:
Media may not be provided to children or adolescents if they are pornographic or contain other content harmful to minors.
- Federal Review Board for Media Harmful to Minors (BPjM):
The BPjM can index media if they contain pornographic or severely youth-endangering content. These may then neither be advertised nor distributed to minors.
Telemedia Act and Online Content
With the rise of digital media and the Internet, the legislature has also included telemedia in regulation. According to Section 4 of the Interstate Treaty on the Protection of Minors in the Media (JMStV), it is prohibited to distribute pornographic writings or content in telemedia (e.g., on websites) in such a way that they are accessible to minors.
Distinction: Pornographic, Obscene, and Indecent in the Legal Context
The terms ‘pornographic’, ‘obscene’, and ‘indecent’ are often used synonymously in everyday language but are differentiated under the law:
- Pornographic Writings:
Explicit depictions of sexual acts with the intent of sexual arousal.
- Obscene Writings:
Refers to inappropriate, offensive depictions that do not necessarily cross the threshold into pornography.
- Indecent Writings:
Historical term, nowadays usually subsumed under ‘pornographic writings’ in legal contexts.
The distinction has legal relevance, as only pornography within the meaning of legal regulations is comprehensively regulated under criminal law.
Criminal Consequences
Penalties and Offense Elements
Sanctions for violations of the relevant provisions can be severe, especially regarding child pornographic writings. Violations of Section 184 StGB are punishable by imprisonment of up to one year or a fine. In particularly serious cases, especially if committed for commercial purposes or involving minors, the law provides for higher penalties. Possession, distribution, or production of child or juvenile pornography can be punished with several years in prison.
Attempt and Assistance
Criminal law covers not only completed offenses but also attempts, as well as aiding and abetting such crimes. Even ‘offering’ or ‘announcing’ pornographic writings to minors may be punishable.
Special Features When Acquiring and Possessing
Acquisition and Possession in the Private Sphere
For adults, possession and acquisition of pornographic writings within one’s private sphere are generally permitted, provided they do not involve prohibited content such as child or juvenile pornography. Making such content publicly accessible (e.g., on the internet or at events), however, is subject to strict legal restrictions.
Media Privilege and Freedom of Art
An exception to the criminal provisions may exceptionally apply to works of art, scientific work, or reporting on contemporary events, provided the pornographic depiction is not an end in itself. However, case law sets high standards for invoking artistic freedom in accordance with Article 5(3) of the Basic Law (GG).
Powers of Intervention and Measures by Authorities
Search and Seizure
Anyone suspected of possessing or distributing illegal pornographic writings must expect the seizure of storage media, computers, and data carriers. Investigation authorities can search homes and workplaces and secure relevant evidence.
Deletion from Telemedia
In the online sector, authorities have the power to block or delete websites and accounts if they violate regulations protecting minors from pornographic writings.
EU and International Law
Pornographic writings are also regulated at the European and international levels. EU directives, such as the directive on combating the sexual abuse and sexual exploitation of children, require member states to have comprehensive criminal provisions against child pornography. International cooperation, for example with Interpol and Europol, supports efforts to combat the cross-border distribution of illegal pornographic writings.
Summary
The term ‘pornographic writings’ in German law describes writings and other media whose content primarily serves sexual arousal. The handling of such writings is extensively regulated under criminal law, primarily to protect minors and maintain societal values. While, for adults, possession and consumption of regular pornography are generally permitted, the production, distribution, transfer, and publication—especially in the digital realm—are subject to strict legal requirements. The prohibitions and protection mechanisms are supplemented by national and international regulations. There are special rules for the protection of youth and children, which are particularly stringent in this area.
Frequently Asked Questions
When are pornographic writings considered unlawful under German law?
Pornographic writings are considered unlawful under German law according to Section 184 of the Criminal Code (StGB) if they violate the prohibitions listed in that provision. In particular, distribution, making such content publicly accessible, and offering pornographic material under certain circumstances are criminal offenses, especially when these actions involve minors. Additionally, depictions involving sexual acts with children, juveniles, animals, or violence are categorically prohibited and are subject to an absolute distribution ban, regardless of the intended audience. The unlawful nature applies to printed works, image and sound carriers, as well as digital content, and is independent of the type of medium.
Who is permitted to acquire and possess pornographic writings in Germany?
The acquisition, possession, and consumption of pornographic writings in Germany are generally permitted only for persons of legal age, i.e., individuals who have reached 18 years of age. According to Section 184(1) StGB, it is particularly prohibited—and punishable by law—to provide or make such content accessible to minors. The possession of certain forms of pornographic writings, especially those with child or juvenile pornographic content (Sections 184b, 184c StGB), is also a criminal offense for adults. However, regular adult pornography is generally allowed for people of legal age, provided the content does not violate special criminal law provisions (e.g., depictions of violence, animal pornography).
Is the trade in pornographic writings subject to special legal requirements?
Yes, the trade in pornographic writings is strictly regulated in Germany. Sale and distribution may only be made to adults and must be ensured by effective age verification systems. Bookstores, media shops, video rental stores, or online platforms must implement appropriate technical and organizational measures to prevent minors from accessing such content. Furthermore, the trade is subject to additional restrictions regarding publicity; for example, public advertising for pornographic writings is generally prohibited by law (Section 184(5) StGB). For online offerings, the provisions of the Interstate Treaty on the Protection of Minors in the Media (JMStV) also apply.
What are the sanctions for violations of the legal provisions concerning pornographic writings?
Violations of the legal provisions regarding pornographic writings are subject to severe penalties, depending on the nature and severity of the offense. These range from fines to several years in prison, and may also include additional measures such as professional bans. Particularly harsh penalties apply to offenses involving the protection of minors, such as making pornographic writings accessible to persons under 18 or possessing child pornographic content. In such cases, mere fines are often excluded, and multi-year prison sentences may be imposed. There is also the risk of confiscation of the relevant media and prohibition from professional activities in the media sector.
Are there legal differences in the regulation of written, pictorial, and digital forms of pornography?
German law treats all forms of pornographic writings equally, regardless of whether they are in written, pictorial, or digital form. The term ‘writing’ under Section 11 StGB includes not only printed works (such as texts, books, and magazines) but also pictorial representations (e.g., photos, films, drawings) and computer files, provided they are intended and suitable for distribution. Criminal law provisions therefore apply to all forms of representation, and the technical means of transmission (print, DVD, internet, streaming, download) are irrelevant. The only determining factors are the content and the target audience.
What is the role of youth media protection in dealing with pornographic writings?
Youth media protection plays a central role in the handling of pornographic writings. In addition to the provisions of the Criminal Code, regulations from the Interstate Treaty on the Protection of Minors in the Media (JMStV) and the Youth Protection Act (JuSchG) apply. These primarily include requirements to take appropriate measures to protect minors, such as age verification controls, time-of-day restrictions (for TV and radio), or filter technology in the online sector. Media providers and telemedia providers are legally obliged to effectively block minors’ access to pornographic writings, for instance, through technical means such as age verification systems. Violations can be punished by administrative measures and fines, and in particularly severe cases, through criminal prosecution.
Are certain forms of pornographic writings absolutely prohibited in Germany?
Yes, there are explicit prohibition areas for certain pornographic writings. These particularly include depictions involving sexual acts with children or juveniles (Sections 184b, 184c StGB), violent pornography, or animal pornography. Such writings may neither be produced, distributed, acquired, possessed, nor imported or exported. The possession or transfer of these contents is categorically punishable, regardless of the age of the persons involved or whether there is a commercial interest. These prohibitions reflect the special protection of children and young people as well as human dignity and have the highest priority under German law.
