Internet Law The Criminalisation Of Child Pornography Law Essay

The written assignment will look at how legislation passed in the United States, the United Kingdom and South Africa have criminalised child pornography on the internet and the challenges that are faced in these jurisdictions in defining criminal conduct. This will be discussed by first looking at the difficulties experienced in policing the internet when trying to monitor this type of criminal conduct and look at the legislation enacted in the United States, The United Kingdom and South Africa and finally to conclude whether the legislation is effective in combating Child Pornography over the internet.

Introduction

Before the late 1980’s, the most common medium of disseminating child pornography was through other media forms such as cassettes, hard copies of photographs usually sent by post [1] (J, Carr). This was quite hard to track as most perpetrators kept the dissemination within a particular group of known perpetrators. Consequently, the use of Internet as a means of disseminating child pornography, which is cheaper and faster became the preferred source of distribution [2] . With the prevalent use of the Internet various access points where child pornography can be produced, possessed and distributed exists such as websites, emails and mailing lists, Internet relay chat (IRC) or instant messaging and usenets/newsgroups/ bulletin boards. The fact that the users remain anonymous has aided the expansion of child pornography industry and the impudence of perpetrators to commit violations.

Difficulties in Monitoring Child Pornography over the internet.

The Internet has made child pornography accessible to anyone with even minimal computer skills, and has led to a rapid increase in its distribution. As a result, child pornography offenses defined as downloading, collecting, and/or circulating child pornography over the Internet are increasingly on the rise, which has led to different countries enabling laws in order to assist with the combatting of this particular crime. There are however challenges in the combatting of this particular scourge with the following challenges being posed:

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The structure of the Internet:

The structure of the Internet makes control of child pornography very difficult. The Internet can be defined is a huge pipeline of connecting networks which functions independently from software and hardware. It is a decentralized system with no central regulatory body, no central or fixed infrastructure (storage facility). Because it is a network of networks, even if one pathway is blocked, many alternative pathways can be taken to reach the same destination. Even if one website is closed down many other websites can take its place. The decentralized nature of the Internet makes it difficult to restrict the distribution of child pornography; this is made more difficult by P2P networks which involve direct connections among computers without the need for a central server.

The uncertainties of jurisdiction:

The Internet is a global communication system that is not restricted to jurisdictional borders. Not only is cooperation among law enforcement agencies necessary to track offenders across jurisdictions, it is required to coordinate resources and avoid duplication of effort. Equally problematic is the issue of who is responsible for investigating child pornography on the Internet when there is no clue as to where the images originate. There is a potential for pornography crimes to go uninvestigated because they do not fall within a particular law enforcement jurisdiction.

The lack of regulation:

The Internet, by its nature, is difficult to regulate, but many jurisdictions are reluctant to introduce laws that might help control Internet use. There are debates about the appropriate weight to give to the community’s protection on the one hand, and to freedom of speech and commercial interests on the other. There is also legal ambiguity about whether ISPs should be liable for the material they carry or merely regarded as the conduits for that material. ISPs’ legal obligations with respect to Internet child pornography are often unclear, and, for the most part, the emphasis has been on self-regulation.

The differences in legislation:

Attempts to regulate the Internet and control efforts are hampered by the different definitions of who constitutes a ‘child’ in legislation enacted in different countries. For example, in the United States a child is defined as someone under 18; in Australia the age is 16.

The expertise of offenders:

Offenders vary in degree on the expertise of their internet use and the manner in which they make use of elaborate security measures to avoid detection. It has been argued that many Internet sting operations succeed only in catching inexperienced, low-level offenders.

The sophistication and adaptation of Internet technology:

The expertise of offenders is enhanced by the rapid advances in Internet technology. In addition to P2P networks, recent developments include remailers (servers that strip the sender’s identity from e-mail) and file encryption (a method of hiding or scrambling data).

The volume of Internet activity:

The sheer amount of traffic in child pornography makes the task of tracking down every person who visits a child pornography site impossible. Catching peripheral offenders or disrupting individual networks may have little overall impact on the scale of the problem.

International Conventions

Convention of the Rights of the Child

The Universal Declaration of Human Rights provides a wide spectrum of human rights for everyone. Before the Universal Declaration of Human Rights, the League of Nations had promoted the idea of granting special protection to children by adopting the 1924 Declaration on the Rights of the Child [3] .

In 1959, the United Nations adopted a Declaration on the Rights of the Child, where the rights from the 1924 Declaration were reaffirmed and further elaborated [4] . The obligation to enforce children’s rights culminated in the adoption of Convention on the Rights of the Child [5] . As of September 2004, there were 192 state parties to the Convention on the Rights of the Child, making it the most ratified international instrument in the world. Children’s rights are further enshrined in the African Charter on the Rights and Welfare of the Child [6] .

The drafters of the Convention on the Rights of the Child were guided by four general principles. One of these principles states that the best interest of the child shall be the primary consideration in all actions. This principle laid the basis for article 34 [7] of Convention on the Rights of the Child, which provides that:

‘States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse.

For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

(a) The inducement or coercion of a child to engage in any unlawful sexual activity;

(b) The exploitative use of children in prostitution or other unlawful sexual practices;

(c) The exploitative use of children in pornographic performances and materials’.

Child pornography violates article 34 of the Convention on the Rights of the Child, which prohibits sexual abuse and sexual exploitation of children. The sexual abuse of a child involves forcing or enticing a child to take part in sexual activities, whether or not the child is aware of what is happening [8] .

Legislation

United States

In the United States, the fight against child pornography via the Internet through laws started in 1996 with the enactment of the Communications Decency Act and the Child Pornography Prevention Act. The Child Pornography Prevention Act [9] explicitly prohibits not only child pornography but makes it illegal to knowingly mail, receive, produce, sell and possess images of child pornography. Similarly, the Communications Decency Act criminalizes the transmission of obscene or indecent messages to any recipient under the age of 18 years.

The Communications Decency Act was the first legal response to the problem of child pornography on the Internet. This law was challenged in the ACLU v. Reno [10] case. The court found that the provisions of the act could not be enforced, except for the sections concerning obscenity and its inherent protection against child pornography. Attorney General Janet Reno appealed the finding to the Supreme Court. The Supreme Court held that the Communications Decency Act violated the First Amendment because its regulations amounted to a content-based blanket restriction of free speech.

Another very important regulation of the content of the Internet in the United States is the Children’s Online Privacy Protection Act of 1998, which seeks to regulate the conduct of ISP’s and invariably impacts on the availability of child pornography on the Internet.

The Children’s Online Privacy Protection Act was challenged in the matter of ACLU v Reno Janet [11] and was declared unconstitutional. It was held that access to the websites, which the act sought to regulate, cannot be restricted based on the nature of the Internet [12] .

The current law dealing with child pornography on the Internet, namely the Child Pornography Prevention Act defines child pornography to be:

‘…any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture…of sexually explicit conduct…[which] contains a visual depiction of a minor engaging in sexually explicit conduct…’.

This definition of child pornography excludes audio and written depictions of child pornography. In relation to the Internet, websites may carry text versions of what may be deemed as descriptions of child pornography.

The Child Pornography Prevention Act has also been challenged in Ashcroft V. American Civil Liberties Union. The US Supreme Court held that the prohibitions of sections 2256(8) (B) and 2256(8) (D) are ‘overbroad and unconstitutional’ because it infringed on the freedom of speech which cannot be banned merely because it tends to encourage unlawful acts [13] .

Legislation sought to combat child pornography on the Internet but the struggle for the protection of freedom of expression and the fear of arbitrary regulation of the Internet by the United States government has resulted in activists challenging the laws identified above.

United Kingdom

In the United Kingdom, child pornography is described as an indecent photograph of a child [14] . The criticism against the definition is that it also omits written descriptions of child pornography. The current relevant laws dealing with child pornography on the Internet are the Sexual Offences Act 2003, the Protection of Children Act 1978 and the Criminal Justice Act 1988. However, these laws must be read together with the amended Criminal Justice and Public Order Act of 1994 and the Criminal Justice and Court Services Act 2000.

Section 1(a) of the Protection of Children Act makes it an offence to take or permit to take or make any indecent photograph or pseudo-photographs of a child. The Protection of Children Act also makes it an offence to distribute or show indecent photograph of a child.

The Criminal Justice and Public Order Act inserted section 7(4) into the Protection of Children Act to encompass indecent photographs of a child stored in a computer disc or by other electronic means, which is capable of conversion into a photograph. Schedule 9, paragraph 3 of the Criminal Justice and Public Order Act amends the word ‘publication’ in section 1(3) of the Obscene Publications Act 1959 to cover the Internet as a means of publication. The new amendment reads, ‘or where the matter is data stored electronically [and] transmits that data’.

The amendment makes any publication of images of children on the Internet which is considered as obscene, to fall under child pornography.

In the Birmingham University [15] case, Alban Fellows, of Birmingham and Stephen Arnold, of Milton Keynes were charged and sentenced under the Protection of Children Act, Obscene Publications Act 1959, and the Criminal Justice and Public Order Act. The materials discovered were thousands of pictures stored in the computer system of children engaged in obscene acts. These materials could be accessed through the Internet across the world. The judge ruled that the computerised images could be legally regarded as photographs and the case set a legal precedent that a pornographic computer image was, in law, the same as a photograph.

According to the judgment, downloading an indecent photograph from the Internet was “making a copy of an indecent photograph” since a copy of that photograph had been caused to exist on the computer to which it had been downloaded.

Section 160 of the Criminal Justice Act makes it an offence to have an indecent photograph or pseudo-photograph. This section covers possession via the Internet and offences involving child pornography on the Internet would be prosecuted under either section 1 and 6 of the Protection of Children Act or section 160 of the Criminal Justice Act.

In 1999, the Court of Appeal in the case of R v Jonathan Bowden [16] held that the downloading and/or printing out of computer data of indecent images of children from the Internet was capable of amounting to an offence within the meaning of the section 1(1)(a) of the Protection of Children Act. The implications of this judgement confirmed that those downloading indecent images from the Internet were breaking the law, but it also meant that law enforcement officers committed the same offence when they made a copy of the contents of suspects’ computer disks. This led to the amendments to the Protection of Children Act by the Sexual Offences Act 2003 to create a statutory defence where it was necessary “to make the photograph or pseudo photograph for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings

South Africa

The Films and Publications Act [17] of South Africa broadly defines child pornography and deals with the Internet as a means for child pornography. The first version of the Films and Publications Act of South Africa was drafted in 1996. The 1996 Films and Publications Act of South Africa was the result of the transformational work of the Task Group on Films and Publications. The task group was set up after the previous law, the Publication Act No. 42 of 1974, failed constitutional scrutiny. The 1996 Films and Publications Act came into force on 1 June 1998 and provided for ‘classification and not censorship’ of films and publications with the exception of child pornography. In 1999, the 1996 Films and Publications Act was amended.

The 1999 amendment provides for the appointment of the Films and Publication Board and the Film and Publication Review Board; to provide for the protection of children against mental, physical and sexual exploitation or coercion to engage in the production of pornographic film, publication or visual representation. Prior to the amendment, the 1996 Films and Publications Act did not contain a definition of what child pornography is. The 1999 Films and Publications Act corrected this by inserting a definition of child pornography in the definition section of the Films and Publications Act. The definition in the 1999 Films and Publications Act cover virtual child pornography due to the substitution of the definition of visual representation to read:

“(a) a drawing, picture, illustration, painting, photograph or image or (b) a drawing, picture, illustration, painting, photograph or image or any combination thereof, produced through or by means of computer software on a screen or a computer printout”

Any image created by using a real child or using computer technology are covered under the 1999 FPA. Furthermore, the objects of the 1996 FPA contained in section 2 was substituted to include [T]o regulate the creation, production, possession and distribution of certain publications and certain films …on the Internet and (b) make the exploitative use of children in pornographic publications films or on the Internet punishable.

A person guilty of an offence under section 27 of the 1999 Films and Publications Act will be liable to a fine or not more than five years imprisonment as provided for in section 30. Other amendments to the 1996 act includes the inclusion of ‘child pornography’ in the Schedule 1 and 6 of the FPA as one of the publications or films which will be classified ‘XX’ by the Board.

On 27 October 2004, due to the increase in the availability of child pornography on the Internet in South Africa, Parliament passed the 2003 Films and Publications Act amendment which seeks to achieve the following objectives:

“…to make further provision for the prohibition of child pornography; …to provide for the registration of [I]nternet service providers; to provide for an obligation to report offences involving child pornography; and to increase penalties for offences involving child pornography…”

In line with the new amendment, child pornography is now defined as

“[a]ny image, however created or any description of a person real, or simulated, or who is depicted or described as being, under the age of 18 years –

(i) engaged in sexual conduct;

(ii) participating in, or assisting another person to participate in, sexual conduct; or

(iii) showing or describing the body, or parts of the body, of such a person in a manner or in circumstances which, within context, amounts to sexual exploitation , or in such a manner that it is capable of being used for the purposes of sexual exploitation”.

The 2003 act is a complete overhaul of the 1999 Films and Publications Act and can be regarded as a response to the growing increase of arrests of child pornographers in South Africa and the relaxed sentences previously provided for. In response to this, the Films and Publications Appeals Board has increased sentences on conviction from five to ten years. Furthermore, child pornography has been recognised as one of the ways in which a child can be sexually exploited.

Additionally, the acts of producing, distributing and possession will henceforth be counted as separate counts. Thereby creating a situation whereby a convict can be sentenced to 30 years imprisonment.

It is worthy to note that the South African government in recognising that child pornography on the Internet is an international crime has included the principle of ‘extra territorial jurisdiction’ in the Films and Publications Act of 2003.In essence, any South African found to have committed any offence under the act could be tried by the country where he/she committed the offence, upon the written consent of the Director of Public Prosecution. The effect of this is that the long-winded process of extradition will be done away with.

Furthermore, ISP’s are mandated to register with the Board and can be prosecuted for failing to report any image or sites displaying child pornography on the Internet. This can be regarded as a multi-layered legal response to the problem of child pornography on the Internet.

Arguably, the definition offered by the Films and Publications Act is inclusive and this is demonstrated with the use of the words ‘however created’. In terms of mode of creation and dissemination, the 2003 Acts definition can be said to be the most comprehensive definition as it takes into consideration the various aspects of child pornography which includes creation and the conduct and purpose, which has been identified as sexual exploitation

In the case of South Africa, there are very few prosecutions arising out of investigations of child pornography on the Internet. The reasons for this could vary from lack of appropriate laws in place to prosecute, to situations where the person apprehended is no longer connected to the Internet but had downloaded the images from the Internet. In the case of South Africa where there is a law in place, the reason for this could be lack of adequate training for law enforcement officers in dealing with such issues.

In the De Reuck [18] case, the accused was arrested and charged with the offence of possessing of child pornography. The accused alleged he had possessed the images for research purposes. However, the medium through which the accused possessed the images were not disclosed to the Constitutional Court. The court noted that

‘ [m]oreover, since child pornography is frequently being imported via the Internet and possessed on computers, the ease with which such possessors may become distributors at the touch of a button, as it were, should be taken into account’.

It is arguable that he had possessed the images on the Internet one because the images were not only film images but also virtual images. Also, if the purpose for which De Reuck possessed the images was to show the availability of child pornography on the Internet, it makes more sense that such collection was from the source he was trying to prove. Therefore, there is a high probability that he had obtained the images from the Internet.

Other prosecutions have also been undertaken in respect of child pornography but in most cases, the fact suggests that the images were found in video footages, digital movie clips, photographic slides and still images.

Conclusion

Various countries have legislated against the publication and distribution of child pornography over the internet, however due to the nature of the medium over which it is distributed, the policing and prevention is hugely ineffective. The legislation enacted is sufficient to curb the distribution of child pornography over the internet, this can be seen in terms of the cases that has been prosecuted, however until such time as an effective means of detection and prevention on the internet can be found, the effectiveness of legislation will remain ineffective.