How is porn legal
What is allowed? - Pornography on the Internet
Our readers ask again and again: What is allowed in the representation of erotic images on the Internet, and when is the limit to pornography crossed? There are no clear answers to this, but there are some indications.
Evil tongues claim that the World Wide Web was only able to develop so brilliantly because it made it possible to distribute dirty pictures in a particularly user-friendly manner via thumbnails. When the files were still being sent via email attachments, you couldn't immediately see what was peeling off when the file was opened. The erotic boom was also supported by the drop in the price of scanners, since it is now affordable for everyone to offer intimate visual material to an audience of millions. The topic of this article should not be the thousands upon thousands of violations of copyright. Even the moral index finger remains down today. Rather, it is about a sober consideration of the German legal provisions on the distribution of pornography.
What is pornography?
When it comes to the question of what pornography actually is, we encounter an unexpected silence. The laws do not give a definition of this term. However, the courts have already dealt with the question in an almost unmanageable number of judgments and created the formula: Pornographic is a rough representation of the sexual that degrades people to a mere (interchangeable) object of sexual desire in a way that incites the sex drive. In other words, when you see it, you know it. After that, the representation of the naked human body alone is not pornographic. This has also been determined by the Federal Court of Justice (BGH). It is also not when the body is shown with its erogenous parts and a sexual stimulus can possibly emanate from them. That means that the pictures in "Playboy" and "Praline" are not necessarily pornographic yet. You can only expect pornographic material when you enter sales outlets with the sign “No access for persons under 18” emblazoned at the entrance. However, these signs are not available on the Internet. Another distinction can help here, that between "simple" and "hard" pornography.
The distribution of simple pornography is in principle not illegal. However, it is now generally recognized medically, as this can also have a harmful influence on minors. Therefore, they must be protected from overly hearty foods. But where the vulnerable are at risk, we all have a responsibility. And this is where the current careless use of the Internet is very worrying. Anyone who puts pornographic material on the Internet must therefore take care as far as possible to prevent it from falling into the wrong hands. The minimum is to make the offer only accessible via so-called "adult verification systems". One of the most popular services of this type is Adult Check. The user has to enter his credit card number there and immediately receives an access code that authorizes him to view the material from various providers. He pays a certain amount for it. However, the operators start from the dubious notion that the user of the credit card is an adult.
In contrast, it becomes really problematic with "hard" pornography. Their public dissemination is prohibited per se - even to adults. The core of "hard" pornography is child pornography. Incidentally, she is subject to German criminal prosecution worldwide. Even imaginary pictures or texts and drawings are clearly prohibited. Not only distribution, but possession of this material is a criminal offense. From a purely legal point of view, however, the owner must have acquired the material on purpose. This means that the surfer cannot be punished if he "accidentally" comes to a page with corresponding content or if he is sent an email with corresponding images. In any case, he must immediately destroy the material or hand it over to a law enforcement agency. The latter, however, can become an “own goal” if he waits too long or even deliberately searches “to put an end to the evildoers”. Anyone who does not know that the images are temporarily stored in the browser's cache on their own hard drive while surfing, and that they are therefore not intentionally "in possession" of the images, cannot be punished either. However, one can hardly refer to this ignorance today. And finally, it is also difficult to prove, since you only came across the pages "by accident". So you can quickly find yourself suddenly in the mill of justice.
Violence and child pornography
Other "hard areas" are violence and animal pornography. Possession is permitted here in Germany, but distribution is prohibited. In the Netherlands, on the other hand, the distribution of animal pornography is not punishable either. Animal pornography is generally understood to mean sexual intercourse with animals. It does not have to lead to sexual intercourse. Violent pornography describes sexual acts in which violence plays a role. These are, for example, rape, bondage or punishment rituals. Here, too, the boundaries between what is permitted and what is forbidden are fluid. For example, there are Japanese photographers who queue up to have their pictures tied up and hanging from trees. Some of these photographs have high artistic standards. In general, art and pornography are not mutually exclusive. It is therefore not possible to draw a general line. Here you have to decide on a case-by-case basis.
The punishable "dissemination" of violent and animal pornography does not mean just sending it. This means that if the material is only sent to a single person, it has not yet been distributed. However, as soon as several addressees receive the material and the group of recipients becomes “uncontrollable”, the legislation speaks of “dissemination” (Section 184 of the Criminal Code (StGB)). At the time, publishers and booksellers were more likely to be thought of, but data storage media, sound and image carriers, images and other representations are treated the same as writings (Section 11 III of the Criminal Code). For this reason, transmissions via the Internet are also understood as “making available to the public”. Incidentally, it is also true in the area of violence and animal pornography that it is irrelevant for criminal liability whether it is real or fictional pornography. The Japanese hentai pictures are also included. And the “adult verification systems” do not play a role here, since distribution among adults is also a criminal offense.
Where are the limits?
Although there may be slight doubts about this paternalism of “responsible” citizens by the state, in the context of “hard” pornography, caution is indeed advised against excessive liberalism. Ultimately, it is about the protection of living beings that have a reduced ability to self-determination. In the case of children and animals, this is obvious: where sensible adults mutually experiment with superiority and subordination and derive mutual pleasure from them, the state has to hold back with its regimentation mania. However, it is very difficult to distinguish game and seriousness. What can be seen on the relevant rape, spanking and bondage pages often eludes a clear assessment. Has the “victim” now consented? If so, to what extent? Did you pay attention to the unwritten rule of trust after the safeword or certain gestures that should result in the immediate termination of the actions during the session? If only one person has been subjected to real violence against their will, the strict regulations are justified.
Konstantin Malakas email: [email protected]
THE INTERNET POLICE
Where there is no plaintiff, there is no judge, was the motto on the Internet for a long time. Since this is no longer the case, two offices at the Bavarian State Criminal Police Office and the Munich Police Headquarters take care of this. They regularly scour the network for manufacturers and distributors of hard, especially child pornography, depictions. In order to get on the trail of this criminal group, the police are very much dependent on information from Internet users and accept messages (including anonymous messages) that can lead to the clarification of the underlying criminal offenses. At http://www.polizei.bayern.de/schutz/kriyiinal/index.htm you will find information about the so-called “network patrols” of the police. The relevant legal texts are also stored there at http://www.polizei.bayern.de/schutz/kriminal/kinder/index.htm. But private initiatives are also increasing. The page of the legal trainee Heidrich (http://heidrich.wespe.de/kinderporno/melden.html) is one of the most carefully researched and updated in this area.
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