Wednesday, 9 July 2008

Child Pornography and Obscenity

Any work that depicts the sexual behaviour of children is classified as child pornography. The anonymity and ease of transfer provided through the Internet has created an international problem with child pornography[1]. The increasing pervasiveness of chat rooms, instant messaging (IM) and Web forums[2] has increased the potential for sexual abuse to occur against children. This use of chat rooms by paedophiles for the purposes of sexually abusing children by starting relationships with them online is widespread. This normally involves making friends with the child, beginning a stable rapport and then steadily exposing the children to pornography through means of images or videos that include sexually overt matter.

Additionally, the Internet has increased how readily available pornography is to children. The ability of children to view pornographic magazines, adult films and movies can be guarded making it difficult for children to obtain illicit materials. As many parents are less computer literate than their children, it is often difficult for them to stop pornography from being downloaded using the Internet by their children. Further, freely available pornographic publications in open areas such as newsagents are controlled through legislation and are only allowed to contain “soft” pornography.

There are few restraints to publishing pornography on the Internet. In fact, “hard-core” pornography is legal within many countries. For example, Denmark[3] has legalised any category of pornography (except child pornography) allowing it to be produced, sold, displayed in cinemas to persons who are 16 years or older and published on the Internet. This includes extreme violence and bestiality. The availability of pornography from these jurisdictions aids in its distribution between school children. An immense amount of obscene matter concerning children is also available. R v Smith and R v Jayson[4] were heard jointly in the Court of Appeal. The Court addressed the matter as to what constitutes "making a photograph or pseudo photograph" for the purposes of s.1(1)(a) of the Protection of Children Act 1978. Jayson avowed that the act of willingly downloading an indecent image from the Internet to a computer screen represents "making." Similarly in Smith it was held that opening an e-mail attachment enclosing an indecent picture could comprise "making." The necessary mens rea in each case is that the performance of “making” need be a conscious operation with the awareness that the picture was, or was likely to be, “an indecent photograph or pseudo-photograph of a child”. It was demonstrated that it is not necessary to prove an intention to store the image in order to fulfil the prerequisite of mens rea.

The Obscene Publications Act 1959 UK[5] [the “1959 Act”] relates to media with the potential “to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it”[6]. The volumes of case law[7] that have defined obscenity have created a range of classifiers that when taken as a whole would be seen to have a propensity to deprave and corrupt the kind of individuals that have witnessed it. Due to their capability to be influenced, children face a greater peril. Print media based “hard-core” pornography can be limited whereas digital pornographic images on the Internet are readily available and require additional measures to restrict access. The Criminal Justice and Public Order Act 1994[8] [the “1994 Act”] was enacted to include the obscene images stored or broadcast as electronic data.

The 1959 Act defines the publication[9] or possession with the intention of publication for gain of an obscene item to be a criminal act. The additions to the law introduced by the 1994 Act connote that an ISP or ICP could face prosecution for the publication of obscene material introduced through an intermediary without consent as the 1959 Act does not require that the defendant had the intent to deprave or corrupt. If the ISP can argue that no examination of the offending media and no reasonable cause to suspect an obscenity existed, they have a defence to the charge. However, a notification and subsequent failure to act within a reasonable time would remove this protection. The wide-held knowledge of the types of materials being disseminated across the Internet would make the introduction of monitoring software prudent.

More crucially, the Protection of Children Act 1978[10] (as revised by the 1994 Act) makes it a crime “to take, or permit to be taken or to make, any indecent photograph or pseudo-photograph of a child”, “to distribute or show such indecent photographs or pseudo-photographs” or to hold “possession such indecent photographs or pseudo-photographs”. The revisions of the 1994 Act extended the definitions to include any “data stored on computer disk or by other electronic means which is capable of conversion into a photograph” with the introduction of the expression “pseudo-photograph”. The act also extends the definition of child to include any image where the principal sense derived from the image would lead one to believe that the picture is of a child, whether or not the person (or representation[11]) in the image was actually a child. The nature of the images must be “indecent”[12] to be included within the provisions of the 1978 Act. The danger for an ISP or ICP is that mere possession is all that is required to be prosecuted under this Act leaving it possible for both the content owner and the service provider to be jointly charged. Child pornography is also covered by the Criminal Justice Act 1988[13]. The possession of an indecent photo of a child is an offence under the act which is also amended by the 1994 Act.

Under the Telecommunications Act 1984[14] it is an offence to transmit any communication of a grossly offensive, indecent, obscene or menacing character through means of a telephone from the UK. As the definition of communication includes data transmissions sent by modem Internet transmissions are also included. An Internet service provider would not be expected to be effected by this Act as it is aimed at the instigator of the message containing the illicit material. However, the increasing use of VoIP[15] and the associated capability to record and replay communications could place a service provider at risk it they came to know about an illicit transmission and did not act to mitigate it.

The Indecent Displays Act[16] added the offence of publicly displaying indecent material. The individual who creates an indecent display as well as somebody who causes or permits such a display can be held guilty of an offence. Display is defined under the act to be visible from any public place including free Internet transmission. Section 1(3) states that the requirement of a payment to access the material means that such a site is not on public display. Thus a pay for view pornographic website is not covered by the Act. The Act applies to both individuals and organisations.

The Sexual Offence (Conspiracy and Incitement) Act[17] made it an offence to conspire or incite others in the UK to perform sexual offences outside of the UK. Under this Act, the foreign poster of an Internet communication comprising an incitement under the act could be prosecuted in the UK. A service provider or other organisation with knowledge of such a transmission who subsequently fails to act could face both criminal and civil action.

The US Congress tried to address the problem of the ease of access to this type of material by children through the Telecommunications Act of 1996. Title V of the act (commonly known as the Communications Decency Act, CDA) included provisions with the intent to regulate the dissemination on the Internet of material deemed to be inappropriate to minors. Shortly afterwards however, the Supreme Court struck down sections 223 (a) and (d) in Reno v. American Civil Liberties Union[18] result of these and subsequent cases is that there is no clear “community standard” which defines obscenity. In cases such as child pornography, this is being clearly held not to be expression protected by the First Amendment. The Internet has provided offenders with greater access to obscene materials and even aids in the solicitation of children by paedophiles.

The issue of free speech protections in the US does not preclude being prosecuted in a jurisdiction with extremely stringent standards (such as China) for matter that would not be deemed offensive in its homeland. This would be of greatest concern to the most significant service providers that have multinational operations and thus may face International actions[19].

An alternative option to limit child pornography over the Internet is to target payment intermediaries. These organizations allow it to remain profitable to sell child pornography across the internet. Even though a great quantity of pornography is distributed through non-commercial transactions[20], commercial sites are a key supplier of child pornography over the internet. The commercial sources of a great deal of child pornography could be curtailed by targeting payment intermediaries. As commercial pornographic distributors commonly oblige credit card processing and necessitate this information to be held in a database for processing before granting access the service, the credit card both ensures payment for the service and authenticates the client’s age. This approach thwarts many of the issues a site could be exposed to if it permitted minors to access pornographic material.[21] Thus access to credit card processing is vital to the operation of a commercial website offering pornography[22].

References
[1] The exploitation from child pornography can result in far reaching negative effects and suffering. Those concerned with the child pornography trade often entice problem or disabled children with pledges of pecuniary or other payments. Children who are sufferers of sexual exploitation may undergo lifelong depression, emotional dysfunction fear and anxiety.
[2] such as Facebook and chat rooms.
[3] Quimbo, Rodolfo Noel S (2003) “Legal Regulatory Issues in the Information Economy”, e-ASEAN Task Force, UNDP-APDIP (MAY 2003); See also, JT03220432 (2007) “Mobile Commerce” DIRECTORATE FOR SCIENCE, TECHNOLOGY AND INDUSTRY COMMITTEE ON CONSUMER POLICY DSTI/CP(2006)7/FINAL, 16-Jan-2007
[4] 2002 EWCA Crim 683 (No. 2001/00251/YI)
[5] Obscene Publications Act 1959, UK; see also Obscene Publications Act 1964, UK
[6] Ibid, S 1.1.
[7] Case law on obscenity predates the Internet and may be extrapolated from the large amount of case law concerning mail order pornographic material, video tapes and printed media.
[8] Criminal Justice and Public Order Act (UK) 1994 CHAPTER 33
[9] Publication includes of any variety of sale, distribution or performance.
[10] The Protection of Children Act 1978 (UK).
[11]The Act includes computer-generated and manipulated images and if these are significantly similar to the image of a child such that they are likely to be taken to be a child shall be treated as such.
[12] Indecent is different from obscene. Indecency occurs at a reduced level of offensiveness than obscenity. In particular where children are involved a lower standard of offensiveness will be required.
[13] The Criminal Justice Act 1988 (UK).
[14] The Telecommunications Act 1984 (UK).
[15] Voice over IP.
[16] The Indecent Displays (Control) Act 1981. The aim of the Act is to make fresh provision with respect to the public display of indecent matter and to this end a number of existing statutes dealing with indecent public display. These are replaced by a new offence in section 1 of the Act of publicly displaying indecent matter.
[17] Sexual Offences (Conspiracy and Incitement) Act 1996 (UK). See also Sexual Offences (Conspiracy and Incitement) Act 1996, Sex Offenders Act 1997, Criminal Justice (Terrorism and Conspiracy) Act 1998, Sexual Offences Act 1956.
[18] 521 U.S. 844 (1997).
[19] Yahoo in 2000 lost a case brought by the French Government seeking a ruling to prevent people in France gaining access to websites offering Nazi memorabilia. Yahoo France does not carry the auctions but French internet users can access the company's US site at the click of a mouse. Judge Jean-Jacques Gomez confirmed a ruling that he first issued on May 22 ordering Yahoo to prevent people in France from accessing English-language sites that auction Nazi books, daggers, SS badges and uniforms.
[20] Williams, Katherine S. (2003; File-Sharing Programs: Child Pornography is Readily Accessible over Peer-to-Peer Networks, Testimony Before the Comm. on Gov. Reform, House of Reps. (Statement of Linda D. Koontz, Mar. 13, 2003), available at http://www.gao.gov/new.items/d03537t.pdf at 5 (Stating that Usenet groups and peer-to-peer networks are the principal channels of distribution of child pornography).
[21]Pornography websites were channelled into the use of credit cards to verify age in part by the affirmative defence offered by §231 of the Communications Decency Act. 47 U.S.C. §231(c)(1)(A) (“It is an affirmative defence to prosecution under this section that the defendant, in good faith, has restricted access by minors to material that is harmful to minors by requiring use of a credit card, debit account . . . .”).
[22]See id. at 5–6 (Concerning a child pornography ring that included websites operating from Russia and Indonesia (content malfeasors located out of US jurisdiction) and a Texas-based firm that supplied the credit card billing and access service for the sites.

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