Violation of the freedom of expression by not authorizing a producer to reproduce porn movies!

JUDGMENT

Pryanishnikov v. Russia 10.09.2019 (no.  25047/05)

see here 

SUMMARY 

License for reproduction of films, freedom of expression and protection of third party rights.

The applicant, a producer of erotic films, owns the copyright for their distribution with valid distribution certificates. He requested that the films be distributed by the Russian Ministry of Press and Broadcasting, but his request was rejected. The domestic courts finally rejected his claim on the ground that he was involved in investigations into the illicit production of pornographic material, although this had not been proved.

The Court found that the intervention was in accordance with the law and had “pursued legitimate aims” for the purposes of Article 10 § 2 of the ECHR, ie the protection of the morals and rights of third parties, in particular children. However, the national courts did not provide relevant and sufficient reasons to establish that the applicant had in fact produced or distributed pornographic material, and did not weigh the impact that the refusal to grant a film license would have on the applicant. The ECtHR concluded that a fair balance was not reached between the right to freedom of expression and the need to protect public morals and therefore there was a violation of freedom of expression.

PROVISION 

Article 10

PRINCIPAL FACTS

The applicant, Sergey Viktorovich Pryanishnikov, is a Russian national who was born in 1957 and
lives in St Petersburg (Russia).

Mr Pryanishnikov is a producer of erotic films and owns the copyright to over 1,500 such films. The
films were approved for public distribution, and he holds valid distribution certificates for audiences
over 18 years old. In 2003 he applied to the Ministry of the Press, Broadcasting and Mass Media for a
film reproduction licence. In October 2003 it refused the application as Mr Pryanishnikov 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.

Mr Pryanishnikov challenged the refusal before the Commercial Court of Moscow. However, in May
2004 that court upheld the decision of October 2003. It noted that Mr Pryanishnikov had never been
formally charged with the distribution of pornography and had only been questioned by the police
as a witness. However, no decision had yet been taken in the criminal proceedings and “it could not
be ruled out that [the applicant] was involved in the illegal production of pornographic films …”.

In September 2004 the Appeal Court upheld the judgment. It found that Mr Pryanishnikov’s
involvement in the distribution of pornography had been confirmed by material from the Internet
containing offers to sell pornographic products. Two months later the Court of Cassation upheld the
judgments, noting in particular that the licence had been refused because the applicant was
“involved in investigative measures concerning the illegal production of pornographic material”.
The charges of producing and distributing pornography were subsequently dropped.

THE DECISION OF THE COURT…

Article 10

The Court found that the refusal to issue a film reproduction licence had amounted to an
interference with Mr Pryanishnikov’s freedom of expression. The interference had been prescribed
by law and had “pursued legitimate aims” for the purposes of Article 10 § 2: protecting morals and
the rights of others, in particular children.

When determining whether the interference was also “necessary in a democratic society”, the Court
established that the domestic judgments – in so far as they relied on a suspicion regarding Mr
Pryanishnikov’s involvement in producing and distributing pornography – had been based on
assumptions rather than reasoned findings of fact.

The domestic courts had referred to the ongoing criminal investigation, but they had not relied on
any document from the criminal case file suggesting that the applicant was suspected of that
offence. In fact, they had explicitly noted that he had been involved in the investigation as a witness
rather than a suspect. Moreover, as regards the material from the Internet mentioned by the Appeal
Court, that court had not given any description of the products offered for sale or any reasoning as
to why it believed them to be pornographic. Nor had it explained why it considered that it had been
Mr Pryanishnikov who had produced or distributed those products. Therefore, the domestic courts
had not provided relevant and sufficient reasons for the finding that he produced or distributed
pornography.

Lastly, the Court observed that the domestic courts had not weighed the impact which the refusal of
a film reproduction licence would have on Mr Pryanishnikov’s ability to distribute all the films for
which he had distribution certificates or on his freedom of expression in general. The courts had
therefore failed to recognise that the case involved a conflict between the right to freedom of
expression and the need to protect public morals and the rights of others, and had failed to perform
a balancing exercise. The Court considered that such a far-reaching restriction on his freedom of
expression had not been justified. There had been therefore no reasonable relationship of
proportionality between the means employed and the aim sought to be achieved.

Accordingly, there had been a violation of Article 10 of the Convention.

Just satisfaction (Article 41)

The applicant did not make a claim in respect of pecuniary or non-pecuniary damage.

Regarding his request for a film reproduction licence, the Court noted that the domestic law had
been amended so he now no longer needed such a licence to distribute films for which he owned
the copyright.

echrcaselaw.com).


ECHRCaseLaw

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