November 19, 2019
Argyro Chatzinikolaou is a doctoral researcher and a member of the Law & Technology research group and the Human Rights Centre at Ghent University. She is currently working on the research project “Minors and online sexual acts: a study of legal qualifications and regulatory approaches from a children’s rights perspective”.
In Pryanishnikov v Russia, a case concerning the authorities’ refusal to grant the applicant a film reproduction license, the European Court of Human Rights (hereinafter ECtHR or Court) found a violation of the right to freedom of expression, as the only reason advanced by the domestic courts for the refusal of the relevant license had been based on mere suspicions rather than findings of fact. Moreover, the Court concluded that the authorities had failed to strike a fair balance between the right to freedom of expression and the need to protect public morals and the rights of others. Beyond the judgment itself and the finding of a violation of Article 10 of the European Convention of Human Rights (hereinafter ECHR), what merits attention is the elaborate concurring opinion delivered by Judge Pinto de Albuquerque on the regulation of pornography and the justification of restrictions of such material at a European and national level.
The applicant, Mr Pryanishnikov, owns the copyright to over 1,500 erotic films which had been approved for public distribution by the Ministry of Culture, and for which he holds valid distribution certificates for audiences over 18 years old. In 2003, after applying for a film reproduction license before the Ministry of the Press, Broadcasting and Mass Media, Mr Pryanishnikov’s application was declined as he was ‘involved in investigative measures concerning the illegal production, advertising and distribution of erotic and pornographic material and films’, an offence under the Criminal Code. The Commercial Court of Moscow, before which the applicant challenged the refusal, upheld the decision of 2003; it underlined that Mr Pryanishnikov had only been questioned by the police as a witness. Even though no decision had yet been taken in the criminal proceedings and thus the applicant had never been formally charged with the distribution of pornography himself, the court concluded that ‘it could not be ruled out that [the applicant] was involved in the illegal production of pornographic films …’. Later on, the decision was upheld by the Court of Appeal, according to which Mr Pryanishnikov’s involvement in the distribution of pornography had been confirmed by material from the Internet, where offers to sell pornographic products could be found. The Court of Cassation then upheld the judgments, noting that the applicant was ‘involved in investigative measures concerning the illegal production of pornographic material’. However, the charges of producing and distributing pornography were subsequently dropped.
According to the Court, the refusal to grant the applicant a film reproduction license undoubtedly amounted to an interference with his right to freedom of expression, which was, however, ‘prescribed by law’ and ‘pursued legitimate aims’ – meaning the ‘protection of morals” and “of the rights of others, in particular children’. Thus the Court went on to assess whether the interference was ‘necessary in a democratic society’. To that end, the ECtHR maintained that the domestic courts had relied on mere assumptions rather than requesting a reasoned findings of facts with regard to Mr Pryanishnikov’s alleged involvement in producing or distributing pornographic material. While acknowledging the fact that the applicant had been merely a witness in a relevant ongoing investigation; the domestic courts had failed to present any proof that the applicant was suspected of the offence himself. In fact, the Court of Appeal had superficially referred to the existence of pornographic material offered on the Internet and had used these products to establish a link between the applicant and the suspicions of misconduct, without ever providing any description of the products on offer or their nature nor explaining why it was believed that Mr Pryanishnikov had produced or distributed them. Against this background, the Court could not accept that the domestic courts had provided sufficient reasoning to prove that Mr Pryanishnikov had indeed produced or distributed pornography.
In addition, according to the reasoning of the ECtHR, the domestic courts had failed to weigh the impact of refusing the film reproduction licence on Mr Pryanishnikov’s ability to distribute all the films for which he had distribution certificates or on his freedom of expression in general. Accordingly, it was held that ‘the domestic courts had failed to recognise that the present case involved a conflict between the right to freedom of expression and the need to protect morals and the rights of others, and had [subsequently] failed to perform a balancing exercise between them’. Therefore, as the restriction on the applicant’s freedom of expression was considered far- reaching and by no means justified, the Court found that there exists ‘no reasonable relationship of proportionality between the means employed and the aim sought to be achieved’.
Whilst the Court delivers a quite straightforward judgment, fit to address the unfair treatment suffered by the applicant, it misses the opportunity to take a more principled approach with regard to the acceptable restrictions a state can impose on the production and distribution of erotica or pornography. The Court rightly finds a violation of Article 10 of the ECHR due to the far-reaching restriction of Mr Pryanishnikov’s freedom of expression, having taken into consideration that the authorities had no strong evidence to substantiate the suspicion of any misconduct of the applicant. However, it does not take the initiative to clarify the difference between ‘erotic’ films and ‘pornography’ or between acceptable and obscene/extreme pornographic material, nor does it discuss the distinct policy approach fit to address them. In addition, it does not explore the reasons behind accepting restrictions on the freedom of (artistic) expression when it comes to content of a pornographic nature.
Notwithstanding the acknowledgement of a conflict between the right to freedom of expression and the need to protect public morals and the rights of others, and despite noting the failure of the national courts to perform a relevant balancing exercise, the Court chooses not to elaborate on this conflict of rights. As a matter of fact, paragraph 53 of the judgment briefly explains that
‘State authorities are in principle in a better position than the international judge to give an opinion on the exact content of the requirements [of morals], as well as on the “necessity” of a “restriction” or “penalty” intended to meet these requirements’.
In other words, the Court explicitly abstains from discussing the negative impact the production and dissemination of pornography may have on societal groups, such as children and women, and the reasons justifying respective restrictions on pornography at a legislative or policy level.
Indeed, as regards the protection of morals, ‘it is not possible to find in the legal and societal orders of the Contracting States a uniform European conception of morals’ (paragraph 53). However, the Court seems to overlook the minimum level of protection already established internationally. As presented separately by Judge Pinto de Albuquerque, a number of legally binding instruments and policy documents at a Council of Europe level put forward standards for the protection of children in relation to pornographic material. In his concurring opinion, he provides for a structured analysis on the legal framework and case law on pornography in Europe, and on the State’s positive obligation to protect children from pornography and to prohibit extreme pornography. Judge Pinto de Albuquerque manages to broaden the scope of the discussion – some might say unnecessarily widely – and adopts a principled approach on the issue. Further, his analysis includes an eye-opening overview of the case law and the Council of Europe policy on the prohibition of and restrictions on pornography across Europe. Contrary to the actual judgment, he initiates the discussion on the rationale behind the restriction of pornography and makes a distinction between acceptable adult content which may be distributed to individuals over the age of 18 and extreme/violent pornography which shall be restricted completely. For the first time in this case, the balancing exercise – which the national courts failed to perform and the Court decided not to carry out itself – was actually attempted.
Most importantly, Judge Pinto de Albuquerque shed light on the Council of Europe standards for the protection of children from the consumption of harmful content, including age-inappropriate material such as pornography. In line with the current international policy (see Guidelines to respect, protect and fulfil the rights of the child in the digital environment and Audiovisual Media Services Directive (AVMSD)) he brought age-verification mechanisms into the discussion. Moreover, he made a relevant link with the initial Russian distribution certificate issued by the Ministry of Culture and assessed the adequacy of the regulatory measure.
All in all, the finding of a violation of Article 10 was straightforward, and thus the reasoning of the Court was sufficient in reaching this outcome on the basis of the case’s facts. This seems to be acknowledged by Judge Pinto de Albuquerque, who also agrees that the distribution licenses for audiences over the age of 18, issued by the Ministry of Culture and held by the applicant, suffice to demonstrate that Mr Pryanishnikov respected the state’s set measures to protect societal values. Nonetheless, as aptly pointed out in the concurring opinion, the analysis was superficial and failed to reflect on the international policy on the restriction of pornography as part of the balancing exercise between the right to freedom of expression and the protection of morals and the rights of others. In fact, one might say that an analysis such as the one carried out by Judge Pinto de Albuquerque was not necessary or even fitting against the factual basis of this case. Yet his attempt to explore the limits of the freedom of artistic expression in relation to the impact of pornography on children is more than welcome today, considering the increased availability of pornography online and the ease with which children can access it.
Finally, not only does he bring forward the positive obligation of States to protect children from content deemed harmful (even though he does not discuss in detail the way in which their development is impacted), but he also takes the laudable initiative to discuss the impact of pornography on the societal role of women. Despite the lack of an obvious link to the facts of the present case, Judge Pinto de Albuquerque takes a bold step and broadens the discussion in order to establish the limits of artistic expression with regard to the negative impact it may have on both its consumers and women as a societal group. After all, when discussing the production of pornography as a type of artistic expression, one must always consider its societal imprint; it is often the case that [certain types of] ‘pornography reinforce[s] stereotypes, discrimination and gender inequality, exploit[s] existing inequality between sexes and contribute[s] to gender-based violence’ (Concurring opinion of Judge Pinto de Albuquerque, paragraph 30). It is thus significant that, drawing on existing policy instruments that discuss the impact of pornography on individuals, be it adults or children, Judge Pinto de Albuquerque attempts to reaffirm the established minimum level of protection for children and women, this time at a ECtHR level.