Child pornography: an international perspective
Date: August 02, 2004Source: United Stated Embassy Stockholm
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... "data stored on a computer disc or by other electronic means which is capable of conversion into a photograph". (Criminal Justice and Public Order Act 1994 Sec. 7(8)(9)). In Austria, the law prohibits not only real child pornography, but also material that suggests to an objective spectator that its production involved the sexual abuse of a child/minor. Similar statutes in the Netherlands (Penal Code Sec. 240b) and in Canada (Penal Code Sec. 163) could be applied to computer generated pornography. In the United States, however, the current federal child pornography statutes and most state statutes apply only to depictions of actual children and not "pseudo" or computer generated pornography. The state of Virginia, however, has passed a statute which criminalises simulated child pornography in which "a person who is depicted as or presents the appearance of being less than eighteen years of age in sexually explicit visual material is prima facie presumed to be less than eighteen years of age." (Code of Virginia 18.2-374.1). The same statute includes computer generated reproductions. However, such "pseudo" child pornography may be prosecuted pursuant to federal obscenity statutes. INTERPOL, in their October 1996 General Assembly, plans to adopt a resolution that will recommend all countries enact legislation that criminalises child pornography and that such legislation should include "future forms of support such as computers and other virtual representations."
NextOther countries have taken steps to regulate the transmission of sexually explicit material on the Internet. Recently, a Munich prosecutor in Germany demanded that CompuServe block access to sexually explicit news groups on the Internet from its on-line service. The government of Singapore has taken dramatic steps to regulate the Internet by demanding that all Internet servers be licensed by the government Singapore Broadcasting Authority. Singapore Sweeps Internet Clean, Asia Times (Mar. 8, 1996). This allows them to regulate not only pornography but all politically sensitive material. Chinese officials have warned against Internet pornography and have recently visited Singapore to study their system of regulation.
In the United States, the Telecommunications Act of 1996, signed into law in February 1996, makes it a felony to knowingly transmit "obscene or indecent material" over the Internet or on-line computer services if the material may be seen by children under 18. Immediately after the signing, civil liberty and free speech groups successfully sought a temporary restraining order to block its enforcement. In Australia, three States have introduced bills to censor material on the Internet. Because of the proliferation of inconsistent State and Territory laws, the Standing Committee of Attorneys General has agreed on the preparation of a draft bill suitable for a national scheme. The passage of such legislation in many countries is controversial because it directly challenges the right to freedom of expression which is highly valued, particularly by the computer on-line community.
3. Legal Issues Raised by the Regulation of Computer Child Pornography
Along with all the truly remarkable--even lifesaving--tasks which computers perform, the development of computers and the advent of on-line communication has introduced serious challenges into every area of the law. Many questions have yet to be answered. For example, in each nation across the globe, who is legally liable for material placed on a bulletin board system, an on-line service or on the Internet" The individual who introduces the material into the system, the systems operator, the producer of the material, and/or the person who downloads it" There are further questions. In the case of pornography transmitted by computer, the origination of the image may be in a jurisdiction in one part of the world where the image is legal but it may travel to another where the image is patently illegal. Should the global network be dominated by the strictest standard or the most tolerant" Furthermore, should not consenting adults be able to engage in e-mail interactive chat sessions which describe "objectionable" materials since these same communications might not be criminalised it they were face to face, by regular post, or by telephone"
The possibility of creating computer generated pornography has produced a myriad of additional legal issues that are difficult to resolve. Civil libertarians argue that if computer generated pornography involves no real child victim, laws based on protecting children would no longer apply and regulation would be an unwarranted restriction of free speech. They argue that because there is no absolute scientific data that demonstrates a causal connection between the use of child pornography and the commission of crimes against children, there is no reason to restrict its transmission on the Internet. They might also point out the difficulty of determining the "age" of a "child" depicted in a computer generated image.
Child advocates voice the position that the harm of child pornography extends far beyond the individual victim. They assert that children as a whole are the victims of computer generated pornography which displays child victims as sexual objects. Many law enforcement officers argue that the harm reaches beyond the individual child when pornography is used to seduce other children. They add that neglecting to prohibit computer generated child pornography could well re-establish the commercial trade--filling bookstores with computer generated images, de-sensitising society and fuelling demand for such material. Additionally, if it becomes impossible to distinguish computer generated pornography from that which depicts an actual child, prosecution of " genuine" child pornography would become virtually impossible and child pornographers would be furnished with another avenue of defence.
IX. CONCLUSION
Child pornography is a real and pressing problem that exists on local, national and international levels. Directing educational campaigns and training towards parents, teachers, students, legislators, civil servants, child welfare agencies, the private sector and law enforcement personnel on a national level is an important step towards the solution. These local efforts must be supported by global cooperation of an enormous magnitude.
International exchange of information and training is vital. The INTERPOL Standing Working Party on Offences Against Minors, initiated in 1992, is a good example of the kind of collaboration which is necessary. Currently, the Standing Working Party includes law enforcement officials from 29 different countries who are actively collaborating in their efforts to prevent the sexual exploitation of children. "Operation Starburst," the first major international operation against individuals using the Internet to trade child pornography, is a further illustration of international cooperation. In 1995, this worldwide police operation resulted in the arrest of 15 offenders in Britain and a number of others in Hong Kong, Germany, South Africa, Singapore, Canada and the United States. Internet Is Spreading Child Porn, Glasgow Herald, Nov. 21, 1995 at 7.
Many members of the international community have not yet adopted legislation which is directed specifically at child pornography despite a global trend towards regulation. All nations and international bodies, including funding agencies, must use their influence to encourage the promulgation of legislation that prohibits the production, exhibition, distribution and possession of child pornography. In the 1980's, tough enforcement of child pornography laws in the United States and Northern Europe led to a conspicuous drop in the international distribution of child pornography. Further progress can be made worldwide.
When crafting national or local legislation, a delicate balance needs to be reached between a legitimate concern for the protection of freedom of expression and the equally legitimate and pressing concern for the protection of society's children. Regulation of child pornography should not be used as an excuse to regulate free speech or information flow but rather regulation must be targeted at preventing the sexual exploitation of children who are among the most vulnerable members of society. Lawmakers should be careful to draft and adopt laws which attract the broadest possible popular backing so that law enforcement agents will be supported in their efforts to enforce the law.
Regulation of child pornography in the computer age presents special challenges that require considerable technical expertise. Law enforcement officials around the world require technical training. Governments must be willing to allocate funds for such training and the necessary equipment. The establishment of an international resource organisation which would employ a team of specialists in the areas of investigation, law enforcement, behavioural science, prosecution, law and computer technology could be an invaluable resource for the global community.
Finally, the protection of children must become a global priority and nations must commit their resources accordingly. This protection includes a firm commitment to the detection and prevention of sex crimes against children and to the treatment of children who have been sexually exploited. The World Congress has been called in order to promote such a goal and should provide a forum where countries affirm the norms for protection of children set forth in the United Nations Convention on the Rights of the Child.
ADDITIONAL SOURCES
Ralph W. Bennett &Daryl F. Gates, The Relationship Between Pornography and...
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