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Cyprus: Legal Issues on Online Pornography

The term “pornography” is not to be found in any Cyprus legislative context and is never used or analysed as a legal term in any legal paper. The only Law of the Republic that deals with pornography and related matters (obscene articles) is the Publication of Obscene Articles Law L.35/1963 (as amended by the L.53/1976, L.13/1991 and L.95(I)/1999).

Further, Cyprus by virtue of a Decision of the Council of Ministers in 2001 ratified and enforced the Budapest Convention on Cybercrime of 23.11.2001. The Convention was introduced in Cyprus legislation by the Convention on Cybercrime (Ratification) Law of 2004 (L.22(III)/2004). The said European-in-nature legislation governs only “child pornography” and does not deal with any matter in connection with adult pornography.

Publication of Obscene Articles Law of 1963
Pursuant to the Publication of Obscene Articles Law of 1963 (as amended), it is an offence to publish an obscene article. Publication covers import or attempt to import, printing, distribution, circulation, selling, hiring, giving and lending the obscene article, and further showing and playing in case of a movie or related article. Distribution by email would fall within the definition of distribution, as would the placing of an obscene article on a web site. It should also be noted that distribution does not require any element of financial gain to be present. The definition of article includes “anything consisting of or containing material to be read or looked at or both read and looked at, any sound recording, and any film, video-tape, disc or other record of a picture or pictures.” The article will be considered obscene “if its impact tends to cause depravity and corruption on persons that are likely to use, handle, read, view or listen to the article or to its content. The penalty for any offence derived from this Law is up to two years imprisonment and/or a fine of up to CYP300.00.

The question whether an article with pornographic content is considered obscene within the meaning of the Law reached the Supreme Court of Cyprus in 1993 and 2004.

In 2004 His Honour Nicolaides, J. explained that our Legislation is a copy (with minor changes) of the English Law Obscene Publications Act of 1959 and that according to the English case law an obscene publication can be treated as such after the examination of the persons that will or are like to receive the publication. He found that a publication can be treated as obscene “if it tends to cause depravity and corruption on persons that are likely to use it” . Further, his Honour stated that the question should be answered by objectively examining all the surrounding facts of every case and such a matter should be observed based on the standards of the reasonable man without taking into consideration any possible prejudices . More, he said, a distinction between obscene from the one part and dirty, lustful, disgusting from the other part is necessary.

Moreover, the Exporama case showed that the method of publication and any collateral measures taken during the articles’ exposure to the public will be taken into consideration while trying to find out whether there is any risk of harming any third party that is likely to suffer from depravity or corruption. The owners of a sex shop where acquitted on the grounds that they established their premises on the first floor of a building and took all the necessary and appropriate measures in order to prevent any harm to persons that are likely to pass without having intention to enter the shop. The Court, further, stated that the shop of special nature and any visitor is more likely to know the content and stock of it due to the fact that their only will is to purchase and use the said products. His Honour concluded that “under these circumstances these people cannot suffer from depravity or corruption if they have access to those products” .

A decade before, the same matter was raised before the Supreme Court of Cyprus where the Court found the accused guilty due to its inability to show that he has taken any measures for the safe distribution of magazines with pornographic content in the territory of the Republic . The Judge said that the number of the articles (500), the method of their distribution in various points of the Republic in conjunction with the limited territory and population of the Country were sufficient to prove that the distribution of the obscene articles was likely to cause harm to people.

As a conclusion, any person, legal or natural, who wants to publish within the territory of and consequently from Cyprus any article that contains pornographic material, and especially through a website, should take all the appropriate measures to protect any vulnerable to pornographic content persons. Such measures include the control of the website’s visitors by way of age restriction access and the request of their confirmation that they are aware of the content of a pornographic website and their consent and declaration that they are entering the site with their own will. This will protect any person who mistakenly or by fault is visiting the website (i.e. minors) and at the same time will ensure that the visitor has been correctly informed about the content of the website before he is exposed to it.

Budapest Convention on Cybercrime
As a general rule, any online action that is related with child pornographic material is against the law and it is prohibited by very strong sanctions. In Cyprus the relevant law is the Convention on Cybercrime (Ratification) Law of 2004 (L.22(III)/2004).

Our Parliament adopted all the elective provisions of the Cybercrime Convention with the result of adopting as criminal offences all the following conducts :

a. producing child pornography for the purpose of its distribution through a computer system;
b. offering or making available child pornography through a computer system;
c. distributing or transmitting child pornography through a computer system;
d. procuring child pornography through a computer system for oneself or for another person;
e. possessing child pornography in a computer system or on a computer-data storage medium.

Further, the Law defines that the term “child pornography” shall include any material that visually depicts:
a. a minor engaged in sexually explicit conduct;
b. a person appearing to be a minor engaged in sexually explicit conduct;
c. realistic images representing a minor engaged in sexually explicit conduct.

It is well noted that the term is not limited only to minors but it is extended to actions of persons that they appear to be minors. As a result the administrator of any website with pornographic material should make sure that its website fully complies with the requirements set in the Convention and Law against child-pornography.

Valentinos Ant. Soteriou, ANTONAKIS SOTERIOU & ASSOCIATES LLC

Cyprus Soteriou