The Austrian Pornography Act, also known as the Federal Act of March 31, 1950, on Combating Obscene Publications and Protecting Youth from Moral Danger, is a law that regulates pornography in Austria. It has its roots in legal efforts since 1715 to contain obscene writings and objects. The reason for enacting the Pornography Act was that the catastrophe of World War II had not only crippled the market, but had also led to a shake-up of traditional views of decency and morality. The law was intended to set boundaries of morality and decency in the interest of orderly coexistence. It is intended to restrict the satisfaction of sexual desire, as purely erotic works have a similar effect to drugs due to increased feelings of pleasure and awaken the subconscious urges of young people. It was considered a great injustice that had to be combated to use the superior strength of the instinct for self-preservation and procreation for financial gain. Since its adoption in 1950, the law has not been amended in substance, but has been increasingly liberalized by the courts. Due to its age, it has been criticized as outdated and in need of reform.

Legal history

Before 1950: Protection from God's wrath and protection of youth

First known efforts to combat obscenity Since 1715, efforts have been made to combat obscene writings and objects through legislation. Since the emergence 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 type of obscenity. With society's departure from the commandments of religion, the reasoning changed: instead of God's wrath, the moral sensibilities of the residents were cited, while concern for the youth persisted. Under 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.

§ 516 – General prohibition of "obscenity" In the year 1852, a new criminal law was introduced that remained valid 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. It was sufficient that the act was capable of causing annoyance. Even if the fact only came to light after the event, this criterion was still met. 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 inappropriate 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.

Special laws from the 20th century onwards Since the 20th century, further legislation has been introduced. For instance, the Press Act of 1922 stipulated that printed matter “which, by exploiting youthful instincts, endangers the moral welfare of young people” was not to be distributed to persons under 18-years; furthermore, its “distribution via street vending and newsagents in general” could be prohibited. In addition, an international conventions against obscene publications from 1910 and 1923, aimed at curbing obscene publications, were implemented under international law. These agreements remain in force in Austria to this day and impose an obligation to combat obscene materials, particularly where they are distributed commercially. The 1929 amendment to the Criminal Code introduced provisions for the protection of minors. Similar to Section 2 of the Pornography Act today, these provisions made it a criminal offence to make “offensive” materials accessible to persons under 16 year-olds. At the same time, the offence of “advertisements intended to bring about indecent intercourse” was created, which still exists under the same name in the Criminal Code today. In 1934, the ‘Ordinance for the Protection of Morality and Public Health’ was enacted on the basis of the War Economy Authorisation Act. It prohibited the public display, distribution, advertising or sale of photographs and postcards showing human bodies that were entirely or predominantly naked.

The distribution of contraceptives (e.g. condoms) was also regulated: mechanical contraceptives could only be sold to end consumers by businesses authorised by the police (such as pharmacies, drugstores, bandage suppliers, perfumeries, rubber goods dealers, etc.). Vending machines were permitted only in specially authorised premises; notices indicating such locations were not allowed to be displayed publicly. Distinct restrictions applied to advertising: mechanical devices intended solely for contraception – such as pessaries or sponges – could only be advertised by post or in specialist journals and exclusively to those with a professional interest. Products intended to protect against sexually transmitted diseases, such as condoms or douching devices, could be advertised by means of notices or displays, but only within or in front of authorised establishments and only in an unobtrusive manner, provided the advertising could be seen from the street. Catalogues and price lists could only be handed out to persons without a professional interest upon express request and had to be limited to the standard trade name, the trademark and the price. Advertisements in publications other than trade journals were also prohibited for these (not merely contraceptive) products. As early as the 1930s, the Austrian Supreme Court (OGH) demonstrated the state’s suspicion towards contraception and sex education by classifying a printed publication as grossly obscene because it depicted sexual acts in a manner that violated modesty. This criticism was directed in particular against depictions of unnatural sexual intercourse and obscene attempts at contraception. A further point of criticism was that the text was generally comprehensible and accessible to the general public. The 1934 regulation was incorporated into the 1945 Constitutional Transition Act, but was rarely applied due to its historical origins and the critical view it attracted.

1950–1960: The "Pornography Act"

Enactment of the Pornography Act

The legislative process From the late 1940s onwards, there was a debate in the Austrian press about introducing a law to eliminate inferior media products that present a danger to minors. Conservative and Catholic media in particular supported the idea of such a law, and government officials began drafting the first bill as early as 1948. Catholic organizations were particularly keen to see it passed quickly. To emphasise their demands, they initiated a series of actions: nationwide demonstrations, protests against cinema operators who were considered to be providers, and so-called 'self-help' campaigns against producers of sex magazines. Members of the ÖVP actively participated in many of these measures. In contrast, parties on the left of the political spectrum – especially Social Democrats and Communists – were much more critical. Although they supported the idea of general youth protection, they feared that the planned law could serve as a veiled censorship regulation. In their view, the real dangers to young people lay not in 'obscene publications' but in precarious economic conditions, high unemployment and poor housing conditions. In 1950, the Pornography Act was enacted. Even today, this law remains the cornerstone of Austrian pornography legislation. 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 notions on customs and morals.

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 Integrity of the youth, barriers were erected for the sake of morality and decency. According to the Justice Committee of the Austrian National Council, the purpose of the law is to restore traditional customs and practices among Austrian youth that had been destroyed by National Socialism and the war. 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. All three parties represented in parliament (SPÖ, ÖVP, and 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.

Similar laws were also introduced in other countries. As early as 1942, Switzerland passed its first nationwide criminal code, which contained provisions against so-called "obscene literature." In West Germany, a corresponding law followed in 1953 after long and controversial debates. Similar to Austria, political support came primarily from conservative circles and the Catholic Church, which saw the law as a means of combating the supposed moral decline after the Nazi era. However, the resurgent interest in obscenity regulations was not a purely German-speaking phenomenon: France passed a law in 1949 to control youth-related publications, and the United Kingdom also introduced similar legal measures in 1959 with the Obscene Publications Act.

The provisions of the Pornography Act

§ 1 of the Pornography Act 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 actors constituted a criminal offence. The government bill emphasized that it was wrong to exploit people's reproductive instincts for financial gain. It made no difference—unlike under the 1934 regulation—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 a fine and/or a prison sentence of one year.