Legal history
Before 1950: Protection from God's wrath and protection of youth
First known efforts to combat obscenity
Since the 17th century, efforts have been made to combat obscene writings and objects through legislation. With the advent of printing and the possibility of distributing printed material on a larger scale, the authorities saw the need to take action against pornographic writings. The authorities feared that they would incur the wrath of God if they did not take action against this form of obscenity. With society's departure from the commandments of religion, the reasoning changed: instead of God's wrath, the moral sensibilities of the population and concern for the youth were cited. During the reign of Maria Theresa of Austria, additional laws were enacted, but these did not have the desired effect, as relevant depictions continued to be distributed. Archduke Francis I of Austria (at that time Francis II as Emperor of the Holy Roman Empire) issued a censorship ordinance in 1795 and a criminal law in 1803 that prohibited the distribution of printed works without censorship and punished it with the loss of business licenses or imprisonment. In 1852, a new criminal law was enacted that remained in force until 1975. It contained a general clause prohibiting obscene behavior and products and punishing them with up to six months' imprisonment, or up to one year's imprisonment in the case of printed works. Verbal expressions, such as obscene talk at the regulars' table, were also covered. The mere possibility of causing offense was sufficient. It was sufficient for offense to be caused by the act becoming known after the fact. For example, a group of people was convicted for writing obscene letters in a closed circle, where it was impossible to cause public offense. Insults such as “whores” and “dicks” were considered inapropriate but not criminally relevant, as these words were only used to express contempt for others. It only became criminally relevant when sexuality was involved. The narrowing of the term to refer to sexuality only developed in the 15th/16th century. [1]
Special laws from the 20th century onwards
Starting in the 20th century, additional laws were enacted. For example, the Press Act of 1922 stipulated that printed works “which endanger the moral well-being of young people by exploiting their youthful urges” could be excluded from distribution to persons under the age of eighteen and that their “distribution through street sales and newspaper vendors” could be prohibited altogether. An international agreement to combat obscene writings from 1910 and 1923 was also enshrined in international law. These agreements are still valid for Austria today and oblige it to combat obscene products, especially commercial ones. With the amendment to the criminal code in 1929, youth protection regulations were enacted which criminalized making “offensive” products available to under-16s. In addition, the offense of “advertising for the purpose of procuring obscene intercourse” was introduced, which still exists today under the same name. In 1934, the War Economy Enabling Act enacted the “Ordinance for the Protection of Morality and Public Health.” Photographs and postcards showing the naked human body in whole or in part were not allowed to be displayed, posted, distributed, advertised, etc. The distribution of contraceptives (e.g., condoms) was restricted. Mechanical contraceptives could only be sold (to end consumers) by companies that were authorized by the police to sell such products (pharmacies, drugstores, bandage suppliers, perfumeries, rubber goods dealers, etc.). These products could only be sold in vending machines in premises approved by the police for this purpose. Posters and notices referring to such premises were prohibited. Mechanically acting contraceptives “intended solely for the prevention of conception, such as pessaries, sponges, and the like” could only be advertised by mail order and through advertisements in trade journals, and only to persons who had “a professional interest in them.” Means “intended for the prevention of conception and at the same time for protection against sexually transmitted diseases, such as condoms, and the like” could be advertised by means of notices, posters, and publications, but only in and in front of authorized businesses and, if the advertisement was visible from the street, and only in a “non-intrusive manner.” Catalogues, price lists and the like could only be sent or handed out to persons who had no professional interest in them upon request and, when sent, distributed or publicly displayed, posted or published, could only contain the standard trade name, trademark and price. Advertisements in publications other than trade journals were also prohibited for such products (not just contraceptives). As early as the 1930s, the Austrian Supreme Court showed state's suspicion to contraception and sex education by describing a publication as grossly obscene because it depicted sexual acts in a manner that violated the sense of shame. This criticism was directed in particular at depictions of unnatural sexual intercourse and obscene attempts at contraception. Another point of criticism was that the text was generally understandable and accessible to the general public. The 1934 ordinance was incorporated into the 1945 Constitutional Transition Act, but was rarely applied due to its historical origins and critical view. [1]
1950–1960: The “Pornography Act”
Enactment of the Pornography Act
In 1950, the Pornography Act (full title: “Federal Act of March 31, 1950, on Combating Obscene Publications and Protecting Youth from Moral Danger”) was enacted. This law still forms the basis of Austrian pornography legislation today. The reason for the pornography act was that World War II had not only crippled the economy, but also led to a shake-up of traditional views on customs and morals. [1] The unhealthy lifestyle during wartime, abstinence, and dealing with death created an increased desire for pleasure, especially in the sexual sphere. In order to ensure orderly coexistence within the state and to protect the mental and moral health of the younger generation, barriers were erected for the sake of morality and decency. According to lawmakers, the law was intended to channel the satisfaction of sexual desire into orderly channels. [1] It has been claimed that works intended solely to arouse erotic feelings have a similar effect to drugs, as they induce heightened feelings of pleasure. These can be particularly dangerous because they can awaken the subconscious urges of young people. [1] All three parliamentary parties (SPÖ, ÖVP, KPÖ) rejected it but with varying degrees of intensity. Fischer (KPÖ) called it a “pimple on the body of the people,” while Kranebitter (ÖVP) regarded it as a corrosive mental poison that had spread to the remotest areas of Austria and was seducing the rural youth into moral licentiousness. He warned that this could destroy the Austrian people and called on the National Council to rigorously enforce the law in order to eliminate these plague germs of moral decay and protect the souls of young people, public health, and the dignity of women from contamination. The breeding grounds of the plague bacilli of moral decay must also be radically destroyed. The SPÖ emphasized the necessity of sex education to keep young people away from obscene literature. Section 1 of the PornA of 1950 differed from the 1934 ordinance in that it was no longer nudity and contraceptives that were punishable, but “obscenity.” The focus was on sexual acts and profit-seeking intentions, because only profit-seeking actions were punishable. The government bill emphasized that it was wrong to exploit people's reproductive instincts for financial gain. Unlike the 1934 ordinance, it did not matter whether pornography was displayed publicly or privately. The intention to make a profit included selling, renting, or using it in a bar to attract customers. Employees could also be punished if they were indirectly involved in the profit. The focus on “profit-seeking” was seen by SPÖ member of parliament Strasser as an element of freedom, since only producers, not consumers, were punished. The penalty was one year's imprisonment and/or a fine. Section 2 of the Pornography Act did not focus on profit-making intentions, but tightened the youth protection provisions introduced in 1929.
It covers content that could endanger the moral or physical development of young people by stimulating lust or misguiding their sexual urges. Depictions such as erotic poses could therefore fall under Section 2. The 1950 law tightened the provisions of the 1929 amendment to the criminal law amendment in several respects: films shown to young people under the age of 16 became punishable even without payment, and the ban was extended to performances and events. The term “offensive” was broadened so that any sexual stimulation that could endanger moral or mental health by arousing lust or misleading the sex drive was punishable as overstimulation or misdirection of sexual feelings. The maximum penalty was doubled from three to six months' imprisonment. The protection of minors was a central concern, and enforcement was the responsibility of the juvenile courts, even if only adults were involved. [1]
Protection of minors in the pornography act
The Austrian Pornography Act emphasizes the protection of minors, which is also reflected in the fact that it is enforced by juvenile courts and in the name of the law. These were responsible even when adults sold “obscene” items exclusively to adults. During the parliamentary debate in 1950, it was noted that older people tend to consume pornography. SPÖ representative Strasser stated that, given the age structure, it would be more accurate to refer to this as a “law for the protection of the elderly” rather than a law for the protection of young people, because it is primarily older people who consume pornography. The law remains unchanged to this day, but its implementation has been modified over time. Jurisdiction was transferred from the juvenile courts to the single judges of the regional courts and, in 1993, also to the district courts. Proceedings under Section 2 were already transferred to the jurisdiction of the district courts in 1989. In contrast to the 1934 ordinance, Section 1 is directed against the profit-seeking handling of “obscene” objects, not against mere nudity. It is about the commercial exploitation of sexual arousal and not about the depiction of exposed genitals, as clothed persons can appear more lascivious than nude images. [1] In deciding on obscenity, the term developed in § 516 StG was used, which did not contain a general prohibition on the depiction of the naked body. Only when the depiction places particular emphasis on the genital area and draws the viewer's attention to these parts of the body does the depiction cross the threshold into “obscenity.”
The production and distribution of works such as “ The Picture of Dorian Gray ” and the model studies ‘M1’ and “Imbert's Model Study” were condemned under the Pornography Act, as they only pretended to serve artists and art students. An artistic, aesthetic, or educational purpose was only recognized as justification if this purpose was clearly recognizable in the work. Medical, forensic, or moral history works were unobjectionable as long as they were used in the interest of scientific or artistic education. However, if such works were distributed to a general audience and appreciated mainly for their erotic content, they could change their character and be considered obscene. The concept of “relative obscenity” became more important in the 1950s and 1960s. It took into account the price, design, and presentation of works. Expensive luxury editions were tolerated because they were less widespread and only purchased by the wealthy. It was assumed that the poison was only released in small doses. The wealthy were also considered more immune to negative effects. In 1952, the German Federal Court of Justice ruled that even magazines for homosexuals distributed in relevant establishments could be considered obscene if they did not meet the standards of “normal” healthy people. [1]
1960–2000: The judicial shift
Liberalization Article 1: Distribution of obscenity
Social attitudes toward sexuality changed in the 1960s, which influenced case law. A milestone was the 1961 decision by the Supreme Court on the use of pleasure-enhancing combination rings (condoms designed to increase stimulation during sexual intercourse through vulcanized nubs). The court of first instance classified these as obscene, but the Supreme Court rejected this ruling and found that only perversions outside of “normal” sexual intercourse could be considered obscene. Aphrodisiacs, which enhance sexual desire and support normal sexual intercourse, were thus considered compatible with sexual morality. The term “marital hygiene products” was coined to circumvent the pornography act, as the purpose of purchasing such items was not apparent. It is noteworthy that German case law only took up this idea later. As late as 1962, the Federal Court of Justice ruled that special condoms were obscene. They were not approved until 1972. Despite liberalization, the “average person” in Austria remained quite prudish. [1] An sex education film was classified as “obsence” in 1970 because it explained that swallowing semen was not harmful to health. The “average person” referred to by the courts is a fictional, normative figure and does not necessarily correspond to the real views of the population. The Supreme Court emphasized that the pornography act was enacted to protect the majority of the Austrian population. The turning point in the treatment of pornography came in the mid-1970s. While the ban on homosexual relationships and the criminal provision against sexual contact with animals were repealed in 1971 and § 516 was deleted in 1975, the Pornography Act remained untouched. The legislature recognized that the criminal law protection of morality was outdated and that criminal law should only be applied in cases of socially harmful misconduct. However, the legislature did not draw any conclusions from these findings in the area of the Pornography Act, so the courts pushed ahead with decriminalization. [1]
Based on social changes and the repeal of Section 516 of the Criminal Code, as well as the restrictive wording of Section 218 of the Criminal Code, the Supreme Court developed a distinction between “soft” and ‘hard’ pornography. Only material that grossly disturbed coexistence was considered “obscenity.” Over time, the concept of obscenity was adapted to social attitudes. In more recent decisions, the term “obscene writing” is interpreted to mean that it must have a shocking and repulsive effect on the average person. The “normal average person” was already characterized in the early 1970s as being “open-minded” and was expected to be socially integrated and open to the achievements of the present. Only what is considered intolerable by a socially integrated average person is considered “obscene” and is frowned upon under § 1. Such depictions mainly include “real sex episodes” or the “excessively intrusive and repulsive reproduction of real sexual acts.” Sexual activity was regarded as a natural, value-neutral part of life, and the legislature deliberately decided against a prudish stance. [1] Criminalization based solely on moral convictions was rejected as undemocratic and zealous. Irrelevant questions of obscenity, shame, or bad taste no longer had a place in criminal law. [1]
Legalization of pornography
In 1976, retailer Hans S. was charged with trading in pornographic materials (books, pictures, magazines, and records) on the basis of Section 1 of the Pornography Act enacted in 1950. At that time, pornography was completely banned. The materials were sourced from the German publishers Decker-publishing house and Stephenson-publishing house, which belonged to the Beate Uhse Group. Although specialist shops for marital hygiene were legally the first sex shops in Austria at that time, they operated on the fringes of legality, as it was unclear whether sex toys or special condoms that promoted marital intercourse were accepted or criminalized as “indecent.” Similarly, the line between tolerated sex education literature and erotic and pornographic literature was blurred. The vagueness of the criminal offense of obscenity meant that the negotiating skills of those involved in court were decisive. [1] Businesspeople had to be very careful not to cause offense. Often, the products were only displayed in separate areas or sold under the counter. Hans S. had clearly marked his store as a sex shop that could only be entered by people aged 18 and over. Age checks were carried out by asking customers for proof of age and, if necessary, checking their ID. Hans S. was nevertheless sentenced to four months' imprisonment and a fine because his goods were considered obscene and offensive to general decency and morality. He filed an appeal for annulment, arguing that his magazines and books only depicted common sexual practices and not extreme practices. Furthermore, his shop was labeled as a sex shop, so customers were consciously confronted with such depictions. The Supreme Court essentially agreed with this argument and upheld S.'s appeal for annulment. This led to a demoralization of pornography legislation. [1]
Sexual criminal law had already been liberalized in 1971 to prosecute only socially harmful offenses. Socially harmful would be anything that endangered the moral integrity of young people, such as the open sale of pornography to young people under the age of 16 or any form of sexual coercion. However, criminal law was not intended to promote a prudish mindset. The reform legalized homosexuality, but pornography legislation remained unchanged. It was only through the ruling in the case of Hans S. that the criminal offense of “obscenity” was redefined. “Hard pornography” remained prohibited. This included sexual violence such as sadomasochistic practices, sex with minors, sex with animals, and homosexual sex, while other pornographic materials were exempt from punishment if they were only distributed to adults. The Supreme Court's decision also changed the basis for assessing Hans S.'s case. It was therefore referred back to the court of first instance for retrial. Since some of the incriminating writings contained same-sex depictions, he was again found guilty and had to pay a fine. However, the sentence was more lenient than the first. The Supreme Court's decision led to a liberalization of pornography legislation in Austria. An attempt at reform in the 1990s failed, and homosexual pornography remained illegal until the turn of the millennium. From 2000 onwards, adult consumers were also able to legally purchase homosexual pornography. [2]
Clarification of the definition of pornography
Reasonable jurisprudence should only consider depictions to be “obscene” if they are likely to disrupt human coexistence for specific reasons. However, it remained unclear what exactly fell under the pornography act, which could have a “shocking and repulsive” effect on the “average person” (unintentionally) confronted with it or could endanger minors. The Austrian Supreme Court recognized that depictions of obscene sexual acts of that are reduced to themselves, detached from other contexts of life, and are distorted in a intrusive, cheaply promotional and dubious way are considered pornographic. Erotic depictions that did not exhibit these characteristics were excluded from the application of the pornography act and could be distributed without restriction. Depictions that are reduced to themselves, detached from other contexts of life, and sensationalistically distorted fall under the term “pornography.”
However, they are only considered “obscene” within the meaning of Section 1 if they grossly disrupt coexistence, for example through unwanted confrontation or knowledge by minors. It was explained that the assessment of the oscenity of a work depends not only on its content, but also on the group of people it addresses. Furthermore, the characteristic of obscenity does not apply if there is no risk of young people becoming aware of the work or if the work is not likely to cause justified offense through unwanted confrontation. Printed works containing sexual depictions do not constitute an offense under Section 1 if they are reserved for a specific group of interested adults, such as customers of sex shops. The Pornography Act is limited to cases in which pornographic materials are freely accessible to everyone. Case law has permitted the sale of pornographic materials in tobacco shops, newsstands, and romance bookstores, but not in mail order, because the age of the purchasers cannot be verified there. [1]
The Supreme Court found that society accepts pornography in private or closed circles as long as the general public is not harassed and young people are protected. It considered these criteria to be in line with social values. However, this did not apply to every type of pornography. The 1977 Senate recognized that certain pornographic depictions, such as sexual violence, especially of a sadistic and masochistic nature, acts involving persons under the age of 14, depictions of vaginal intercourse between ancestors and descendants and between blood-related siblings, depictions of sexual contact with persons under the age of 19 (since July 1, 2001: under 18 years of age) and the depiction of obtaining sexual contact with persons under 19 years of age or animals, as well as sex with persons of the same sex, are generally considered obscene. Furthermore, the depiction of the abuse of defenseless or unconscious persons (e.g., paralyzed, bound, sleeping, drunk, mentally ill, or disabled persons) or exhibitionist acts (towards persons under the age of 14 and certain 14- and 15-year-olds), depictions of obtaining sexual acts (or even just lewd poses or undressing) through deception (Section 108 criminal code) as well as sexually abusive acts involving animals (Section 222 criminal code) and, finally, the depiction of public “obscene” acts were considered lewd and were prohibited. Unusual but not criminal sexual contacts, such as scatological sex or heterosexual group sex, were classified as “relatively obscene”. [1]
Gay porn and BDSM porn
The treatment of homosexual pornography remained controversial. In 1977, the reinforced Senate of the Supreme Court rejected the view that only criminal homosexual acts constitute “absolutely obscene” pornography. The statements were interpreted differently. Some senates understood this to mean any same-sex acts, while others included the reference to the prohibition of the propagation of homosexuality (Section 220 of the Criminal Code), which made “advertising” for homosexuality (and zoosexuality) (“publicly soliciting or approving in a manner likely to suggest such acts”) a criminal offense. According to Duden Etymology 1963, “hard” pornography only exists if there is a threat of mass influence. If the customer base is small or already interested in homosexuality, the depiction is considered “relatively obscene.” Absolute obscenity only existed if a large number of heterosexual people were to be seduced into homosexuality. A newly strengthened Senate ended the attempts at liberalization and declared same-sex pornography “absolutely obscene” regardless of the target audience and its suitability for seduction. Same-sex obscenity contradicts the heterosexual orientation of society and is at odds with a legally ordered society. The Senate emphasized that a depiction of same-sex acts is only “obscene” if it is sensationalist, distorted, and obscene. Mass influence is not required for this. The case law remained in force until 1989, when the 1988 Juvenile Court Act transferred jurisdiction for the enforcement of § 1 from the juvenile courts to single judges of the regional courts. The Innsbruck Higher Regional Court used its new jurisdiction to change the law and in 1989 upheld the ruling of the Innsbruck Regional Court, which acquitted a woman of the charge of distributing hardcore pornographic films with lesbian scenes. The court found that the concept of obscenity is not static and evolves culturally. The average person no longer felt disturbed by same-sex acts, and the legalization of homosexual prostitution reflected the changed social attitude. [1]
Even if same-sex pornography continued to be regarded as “hardcore pornography,” the Innsbruck Regional Court ruled in 1989 that the act was not punishable (Section 42 of the Austrian Criminal Code). Since then, the trade in same-sex pornography has been legal in the jurisdiction of the Innsbruck Higher Regional Court (Tyrol and Vorarlberg), while the rest of Austria did not follow this view. Even after the repeal of Section 210 criminal code, the Supreme Court ruled that same-sex pornography was “absolutely obscene.” The Attorney General's Office tried twice to persuade the Supreme Court to revise this decision, but without success. [1] The complaints were dismissed on formal grounds. Courts in Linz and Krems overturned seizures of lesbian pornographic films or upheld them without explicitly recognizing their “absolute obscenity.” Therefore, the highest judges saw no need to comment on this issue. Outside Tyrol and Vorarlberg, the courts upheld the absolute ban on the commercial distribution of homosexual pornography, with a few exceptions that only concerned the lifting of seizures. However, the repeal of the offenses of “advertising” homosexuality (Section 220 of the Criminal Code) and “connections for the promotion of same-sex obscenity” (Section 221 of the Criminal Code) in 1997 led to a change. Styrian courts, such as the Leoben Regional Court and the Graz Higher Regional Court, allowed the commercial distribution of homosexual pornography outside Tyrol and Vorarlberg. The courts emphasized that changes in criminal law and social acceptance of homosexuality meant that same-sex pornography was no longer considered absolutely obscene within the meaning of Section 1. The substantive and procedural equality of same-sex and different-sex partnerships in 1998 further supported this view. [1]
The legal situation regarding SM pornography was unclear for a long time. In 1977, the Senate of the Austrian Supreme Court considered it to be “hardcore” pornography if it depicted criminal acts such as sexual violence. This included, in particular, sadomasochistic violence and rape scenes, which were classified as “absolutely obscene.” Even consensual, even minor injuries motivated by sadomasochism were considered criminal (Section 90 of the Criminal Code) and their pornographic depiction was considered obscene. However, hitting or tying up without injury remained unpunished. Later, the criterion of criminality was partially dropped and based solely on the characteristic of violence. The consensual depiction of masochistic acts was also considered a criminal offense. It was determined that there was no discernible change in social attitudes toward real violence, as violence continued to be considered an unacceptable form of human interaction, with the exception of socially accepted sports. The Pornography Act was applied more liberally, both with regard to homosexual pornography and the distinction between “pornography” and “erotica,” which could be distributed without restriction. In 1989, the Innsbruck Regional Court saw “merely erotic tenderness” in a lesbian scene, and in 1997, the Vienna Regional Court for Criminal Matters found that certain images could not be considered “excessively intrusive and repulsive” because they were shown in a static manner. [1]
Liberalization of Article 2: Protection of minors
Even in cases involving actual pornographic depictions, confrontation and youth protection were handled generously. The Leoben Regional Court ruled out the possibility of causing public outrage and endangering young people through the distribution of pornographic films via cable television, as the broadcast time was between midnight and 4 a.m. and it was pointed out that minors did not have access to the channel. This decision deviated from the Supreme Court's criterion of abstract endangerment. The Leoben Regional Court also restricted the requirement of profit-seeking more strictly than previous case law. There was no profit-seeking behavior, as the cable company did not charge separate fees, did not broadcast its own advertising, and offered 33 other programs. This did not lead to a significant increase in the number of people interested in subscribing and made video rental more economically attractive. In order to assess “offensiveness” within the meaning of Section 2 of the Pornography Act, case law has always referred to the “normal, healthy average person.” The decisive factor was whether a publication was likely to endanger a normally developed person under the age of sixteen by arousing lust or misleading sexual instincts. No consideration was given to what young people themselves considered appropriate, as they are characterised by an extraordinary thirst for experience. Therefore, strict standards were applied to the exhibition of sexually provocative images in order to protect young people from unfavorable influences and prepare them for their true tasks in life. In the area of § 2, liberalization tendencies were already apparent in the 1960s.
As recently as 1951, the court prohibited the display or posting of the Amazone poster, which showed a woman in underwear putting on a stocking and exposing a large part of her thigh displaying, or posting the Amazone poster, which showed a woman in underwear putting on a stocking and exposing a large part of her thigh, highlighting her voluptuous figure, pronounced curves, and low-cut bra, in places accessible to persons under the age of 16, in particular on billboards, advertising columns, shop windows, and business premises, on the grounds that the Amazone advertising poster was likely to have a harmful influence on the mental and moral development of young people by arousing lust, as evidenced by the defacement and smearing of a number of posters with obscene drawings. [3] In contrast, the Supreme Court ruled in 1961 that the depiction of a woman with a low-cut neckline was not harmful to minors if the sexual stimulation did not exceed the level of everyday life. [1] However, later decisions took the opposite view until the Supreme Court finally ruled in 1974 that the threshold of irritation should be assessed in relation to daily sensory overload. The “normal average person” was considered to be open-minded. [1]
The Supreme Court corrected the legislature's Pornography Act by referring to the requirement of suitability for endangering moral and health development and reversing the tightening of the law in 1950. The “stimulation” of lust was now once again “overstimulation.” The Supreme Court changed its case law and no longer considered an “erotic association” or the “mere arousal of curiosity” to be sufficient grounds for criminal liability. Now, only “excessive sexual fantasies” were considered punishable under Section 2 of the Pornography Act. Physical posture and facial expression remained decisive. A decision by the Leoben Regional Court relieved broadcasting companies of responsibility under § 2 PornA, which was transferred to providers of “offensive” content on the Internet. It was explained that it was not the providers but the owners of the television sets who were responsible for providing access to children under the age of 16. In a landmark decision, the Styrian provincial government approved AIDS prevention brochures for children aged 14 and older and, after obtaining a child and adolescent psychiatric opinion, determined that young people above this age can no longer be seduced into homosexuality, but should integrate their own inclinations into a healthy development. [1]