Criminal liability for the production and distribution of pornographic material.

With the gradual spread of the internet, social media and various digital platforms, significant changes are taking place in the area of offences against public morality. Particular attention is being paid to offences relating to the production and distribution of sexually explicit material. Today, we are witnessing how society functions in the information age and amid relentless digitalisation, which has effectively broken down the boundaries between the private and public spheres. In this context, issues relating to pornographic content are manifesting in new forms and extending beyond traditional societal perceptions. This concerns not only the contemporary challenges faced by those who create or distribute such material, but also the mechanisms by which society, law enforcement agencies and legal scholarship respond.

In an era of technological development and the relaxation of social norms, the creation, distribution and consumption of explicit material have reached unprecedented levels of accessibility. In fact, they have become easier to access than traditionally restricted goods, such as tobacco products. Online platforms such as Pornhub and OnlyFans operate round the clock and show steady growth in visitor numbers. At the same time, the tools for monitoring such content are also evolving and improving significantly: data analysis using modern algorithms, alongside the widespread adoption and integration of artificial intelligence, ensures the rapid processing of vast amounts of information, which greatly facilitates the work of law enforcement agencies in the field of pornographic material, its detection and the application of measures provided for under criminal law.

Ukraine consistently ranks amongst the top twenty countries worldwide in terms of traffic volume on the online platform Pornhub. Furthermore, the online platform OnlyFans, which was founded by a Ukrainian and specialises in the distribution of erotic and pornographic material, was one of the first foreign companies to officially pay tax on the provision of electronic services within Ukraine. During the full-scale invasion, the use of erotic content as a means of raising charitable donations for the defence forces has also been notable. The initiative to legalise pornography and erotic content in Ukraine has secured the required number of signatures on the e-petition platform for it to be officially considered – 25,000 signatures.

At the same time, the current situation is giving rise to considerable controversy. On the one hand, there is criminal liability for acts that do not pose a direct danger to society. On the other hand, there are no clear prohibitions on the distribution of the most dangerous forms of pornographic content, which contain scenes of violence or threats to life or health. This imbalance points to gaps and internal contradictions in the criminal law regulation of this area. Consequently, the issue of decriminalisation or legalisation arises in an extremely contentious context: it requires academic analysis, well-considered decisions and a re-evaluation in the context of rapid modernisation and digitalisation, as excessive liberalisation could pose significant risks to moral and legal order.

The issue of the legal regulation of the production and distribution of pornographic material in Ukraine is not a new one: in 2022, a petition calling for the legalisation of erotica and pornography gathered 25,000 signatures. In the summer of 2025, the situation repeated itself: a petition was registered demanding that ‘the production of adult content be decriminalised so that law enforcement agencies can focus on real crimes rather than carrying out test purchases of intimate photographs’, which also gathered 25,000 signatures. This demonstrates that there is a public demand for legislative reform in this area. At the time, the President of Ukraine, in his response to the petition, emphasised the provisions of the then-current Law on the Protection of Public Morality, which explicitly prohibited the production and distribution of pornographic content.

The relevant provisions are enshrined in the Criminal Code of Ukraine, which provides for:

• liability for the import, production, sale and distribution of pornographic materials (Article 301 of the Criminal Code of Ukraine);
• criminal liability for the production, distribution or possession of child pornography (Article 301-1 of the Criminal Code of Ukraine);
• a ban on the organisation of entertainment events involving minors in the field of pornography (Article 301-2 of the Criminal Code of Ukraine). 

 

The definition of the term ‘pornography’ was contained in the Law of Ukraine ‘On the Protection of Public Morals’, which defined it as ‘a vulgar, naturalistic, cynical and indecent depiction of sexual acts…’. However, since that law ceased to be in force, there has been no general definition of the term ‘pornography’ in Ukrainian legislation.

Draft Law No. 9623 proposed reinstating the definition of pornography and enshrining it in a more detailed version, worded as follows: ‘any material objects, printed, audio or video material, or communications containing explicitly sexual images or depictions of sexual organs for sexual purposes’.

Furthermore, the bill provided for a clear distinction between acts:

• the following would not be criminalised: the production, possession, distribution and sale of materials involving adults with their consent; pimping and the operation of brothels (distinguished from prostitution);
• the following would remain criminal offences: child pornography; extreme forms (violence, bestiality, necrophilia); pornography without the consent of the participants (so-called ‘revenge porn’, i.e. pornographic revenge, deepfakes); pimping; coercion into prostitution; and human trafficking.

One of the points of debate regarding Bill No. 9623 is its relationship with the Law of Ukraine ‘On Media’. This law contains an explicit ban on the distribution of pornographic material. At present, the provisions of both pieces of legislation currently in force are consistent and do not give rise to any conflicts; however, should amendments be made to the Criminal Code of Ukraine, there will be a need to make corresponding amendments to the provisions of media legislation. It seems logical that amendments to the Law ‘On Media’ could be made simultaneously with the entry into force of the new provisions of the Criminal Code, which would preserve the integrity and consistency of the legal framework.

A separate issue is the definition of the term ‘extreme pornography’. Part two of Article 301 of the Criminal Code of Ukraine provides for liability for the production, distribution or sale of such material. The notes to the article specify that this refers to materials containing scenes of violent acts, sexual acts with an animal (zoophilia) or with the body of a deceased person (necrophilia). Whilst the latter two cases are unambiguously unacceptable from both a legal and a moral standpoint, the category of ‘acts of violence’ raises questions.

The problematic nature of the concept stems from its vagueness. The legislator does not provide an exhaustive list of acts that may fall under this concept, and this leaves room for a variety of interpretations. A similar situation can be observed in the context of Article 126 of the Criminal Code of Ukraine (‘Assault and Battery’), which defines ‘other violent acts’ as those that cause physical pain but do not result in bodily harm.

In other words, the wording of the concept of ‘extreme pornography’ in its current form is overly broad and ambiguous, which may create practical problems in law enforcement and also give rise to risks of inconsistency in criminal law assessments.

Draft Law No. 9623 did not propose the full legalisation of pornography, but rather only the partial decriminalisation of certain acts. The idea behind the amendments is to cease criminal prosecution for the production and distribution of material involving adults who have given their voluntary consent. In other words, the state effectively acknowledges that the traditional understanding of public danger in this area needs to be reviewed.

At the same time, it is very important to clarify that the proposed changes are limited in scope. They do not apply to cases involving child pornography, violent practices, zoophilia, necrophilia, or material produced without the consent of those involved (in particular ‘revenge porn’ or deepfake technology). In other words, even if the relevant provisions are adopted, the legislation will continue to contain clear prohibitions on the most dangerous forms of this activity.

However, the legislator has not proposed a comprehensive model for further regulation: there are no draft laws defining the legal status of porn studios or their participants, taxation mechanisms, or specific requirements for activities in this sector. Consequently, this is more a matter of removing criminal liability for specific acts than of creating a clear and regulated system.

In view of the above, the use of the term ‘legalisation’ appears inaccurate; it would be more accurate to speak of an attempt at partial decriminalisation, which as yet leaves many unresolved issues and risks for the legal order and public morality.

International experience demonstrates that there is no single approach to the criminalisation or decriminalisation of acts involving pornographic material. In most European countries, acts that pose a clear danger to society—such as the involvement of minors, the use of animals, violence or coercion—remain subject to criminal penalties. At present, Ukrainian legislation ranges from a complete ban to limited legalisation with the introduction of special control mechanisms.

For example, in the United Kingdom, pornography is generally permitted, but the law contains a clear ban on child pornography and so-called ‘extreme pornography’. In 1978, the ‘Children’s Act’ was passed. It provided for criminal liability for any indecent depictions of minors. More recently, in 2019, the ‘Pornography Act’ came into force, introducing an age verification system for access to commercial websites; however, the implementation of this measure drew a barrage of criticism due to concerns over the collection of users’ personal data.

Poland also permits the circulation of pornography, with the exception of material involving children, scenes of violence and bestiality. However, in 2023, a draft law was tabled in parliament requiring internet service providers to create free tools to block minors’ access to such content at the request of parents. 

In the Netherlands, pornography has been legal since 1985, with the exception of material involving minors and bestiality.

Lithuania takes a more conservative stance: it criminalises child pornography and prohibits the commercial distribution of such content, although private use is not regulated. 

In Estonia, pornography is formally legal; however, its distribution to minors is prohibited by law, and regulatory matters are overseen by a special expert commission under the Ministry of Culture.

Thus, international practice demonstrates a desire to strike a balance between protecting public morality and acknowledging the existence of a demand for pornographic material. However, even in countries where partial or full legalisation has taken place, the legislature is compelled to constantly seek additional control mechanisms – such as age restrictions, access blocking and expert commissions – to ensure that such a sensitive issue does not go beyond what is permitted. 

In recent years, there have been an increasing number of instances in Ukraine where the tax authorities and the Economic Security Bureau (ESB) have taken an interest in the activities of citizens who earn income through international online platforms aimed at distributing pornographic material. Since 2022, the Tax Service has insisted that such income is subject to taxation. This is linked to a new rule obliging international digital services operating in Ukraine to pay VAT. For example, the online service PornHub refused to comply with this requirement for some time and was consequently fined, whilst another online service, OnlyFans, has become one of the largest taxpayers. According to official figures, in 2022 the platform paid around 890,000 dollars into the state budget, rising to 944,000 dollars in 2023.

In September 2024, it emerged that the Tax Service had received data from OnlyFans on all Ukrainian users who create paid content. Creators of ‘adult content’ were sent notices urging them to file tax returns and pay taxes. Some of them agreed to do so, and by the end of 2024, over 350 people had declared around 305 million hryvnias in income and paid over 50 million in tax.

However, cooperating with the state does not always provide the desired protection. After paying their taxes, some content creators became the subject of audits and searches by the State Bureau of Investigations (SBI), which was investigating tax evasion by one of the agencies. As part of the case, the bureau obtained court authorisation to access a list of content creators, which created a risk that tax information might be used in law enforcement proceedings.

In public discourse, this issue provokes conflicting views and therefore requires more detailed examination. Some public figures are strongly opposed to the decriminalisation of the distribution of pornography, viewing it as a form of hate speech and a threat to the reproduction of violent practices in real life. On the other hand, human rights organisations representing the interests of sex workers are calling for the decriminalisation of adult content, arguing that this constitutes a violation of the right to privacy and the right to decent working conditions. In their view, criminal prosecution should not extend to consensual content between adults, whilst protection must remain strict with regard to child pornography and coercion.

The situation in Ukraine highlights a paradox: the state simultaneously demands that creators of digital content pay taxes whilst criminally prosecuting its distribution. This gives rise to a debate about the limits of interference in private life, the state’s role in regulating the industry, and the appropriateness of Article 301 of the Criminal Code of Ukraine. 

An analysis of the draft bill and the current provisions of the Criminal Code of Ukraine reveals deep-seated contradictions in the criminal law regulation of the circulation of pornographic materials. On the one hand, the state insists on fiscal control and requires creators of digital content to pay taxes, thereby effectively recognising their activities as economic in nature. On the other hand, criminal liability and prosecution for the distribution of such material remain in place, even in the case of consensual content between adults. This creates legal uncertainty, breeds mistrust in state institutions and increases the risks of abuse in law enforcement.

The academic problem lies in the fact that national legislation currently combines mutually exclusive approaches: it simultaneously taxes income from the ‘adult’ industry whilst criminalising its products.

Given that this issue is being actively debated both in society and amongst politicians, it is no longer possible to remain silent on the matter or to postpone its resolution. A clear, consistent and well-founded decision must be taken regarding the future of the relevant provisions, based on the principles of legal certainty, the protection of public morality and the rule of law.