iVIRTUAL CHILD PORNOGRAPHY:

Virtual Child Pornography:

Substantive Criminal Law Challenges

Aleš Završnik[1]

Child pornography in post-modern societies

Kendrick’s historical study The Secret Museum: Pornography in Modern Culture shows that the modern concept of pornography was invented in the 19th century by European gentlemen – upper class men whose main concern was to keep obscene material away from women and the lower classes. Psychoanalytical arguments about cultural progress as the social equivalent of the sublimation process on an individual level are along this line of thought - in other words: violence imposed upon ***uality is even more severe than ***ual violence itself. Who are we trying to protect by criminalising consensual nudity of 17 years old youngsters who are simultaneously held criminally responsible, or by criminalising computer generated images of nude youngsters? Are not these restrictions in the name of criminal prosecution of real child pornography overbroad, affecting our fundamental rights: freedom of speech, protection of personal data and the right to respect for private life?

In addition to the aforementioned trend, the repression of ***uality and its representations, ***uality seems to be ubiquitous in contemporary apathetic mass culture society. One is confronted with ***ually explicit images when buying a holiday package, washing machine or waiting for a bus painted with a picture of a supermodel holding a must-have washing powder. *** sells!

But what kind of *** sells online? On the basis of an 18-month study, a research team at Carnegie Mellon University in Pittsburgh team that surveyed more than 900,000 ***ually explicit pictures, descriptions, short stories and film clips concluded:
- there’s an awful LOT OF porn online
- it is immensely POPULAR
- it is a BIG MONEYMAKER
- it is UBIQUITOUS
- it is predominantly a GUY THING
- it is NOT JUST NAKED WOMEN, but also paedophilia (nude photos of children), hebephilia (youths) and paraphilia - a grab bag of material that includes images of bondage, sadomasochism, urination, defecation and *** acts with a barnyard full of animals.

Investigating child ***ual abuse material on the internet further, one can identify the following trends:
(1) Increased frequency: UK based Internet Watch Foundation has estimated that the number of sites with this type of illegal material has increased by 1,500 percent in the period 1997-2005.
(2) Increased sophistication: encrypted P-2-P technology makes it almost completely impossible to identify the users.
(3) Growing profitability: a report by the Council of Europe’s Octopus Interface Conference 2007 concludes that a large share of child pornography sites and child abuse images now appear to be of a commercial nature, generating huge amounts of profit.

Abuse of children connected with the creation of ***ually explicit material undoubtedly deserves criminal justice intervention, but let us turn to the contemporary criminalisation of such material found in the Council of Europe's Convention on Cybercrime and EU Council Framework Decision on combating the ***ual exploitation of children and child pornography.[2] How do the two legal documents deal with on-line child pornography?

On-line child pornography

Generally speaking, information-communication technology (ICT) and the internet creates two types of challenges for the criminalisation of online child pornography:

• definitional challenge due to changed production of such material,
• challenge bound to the problem of modes of execution of such offences due to networked nature of cyberspace.

ad1) What is child pornography?

Who is “a child”?

The UN Convention on the Rights of the Child defines a ‘child’ as “every human being younger than 18 years” (Article 1). Both the Council of Europe's Convention and the EU Council Framework Decisiondefine a child in the same way.

It is doubtful whether the age limit is appropriate for the wide definition of child pornography in the two documents. Firstly, juvenile offenders are not exempted from criminal responsibility in some countries. Additionally, it is very difficult to claim that ***uality is generally dangerous for adolescents. Finally, one can find radical exceptions made by right-wing persecutors who have taken an oath to clean society of paedophiles, in the name of cultural diversity, which means in cases where a child is a member of the “Others”, like Roma people. For instance, in a famous Slovenian criminal case, a 12-year old Roma girl was sold and raped. The explanation was that although she was young, it is not uncommon for young Roma people to engage in ***ual activities so early; therefore she was able to give rational and free consent.

On the basis of the aforementioned doubts, the Council of Europe'sConvention enables states to set a lower age limit, but there is no equivalent reservation in the EU Council’s Framework Decision.

Types of child pornography

Defined in the broadest sense, there are three types of child pornography:

• real child pornography
• children in provocative presentations (for instance “child glamour presentations”, “non-nude child sites”),
• virtual child pornography.

As the US Supreme court has stressed many times, the creation of child pornography is very likely to have been connected with child abuse (for example, New York v. Ferber[3]). This is undoubtedly true of real child pornography, but what about virtual child pornography?

Generally, virtual child pornography encompasses three types of material:
- drawings existing in the real world published online,
- special software modified images of natural persons so they can no longer be identified,
- computer-generated images (pseudo-photographs), in which the production of the material is no longer bound to taking and manipulating pictures of real people. The images are computer generated with so-called digital imaging or morphing techniques.
The Council of Europe's Convention on Cybercrime defines[4] “child pornography” as pornographic material that visually depicts***ually explicit conduct (it is not relevant whether the conduct depicted is real or simulated, i.e. including actors)[5] of one of three types of material:
- a real child,[6]
- a person appearing to be a minor,[7]
- images which do not in fact involve a real person.[8]

The Explanatory Report to the Convention explains that the last type of material includes pictures which are altered, such as morphed images of natural persons, and even generated entirely by a computer. The objects of criminal protection are therefore different:
- the first type focuses directly on protection against child abuse,
- the other two types, as the report explains, aim at providing protection against behaviour that might be used to encourage or seduce children into participating in such acts.[9]

So, while it is clear that protection against child abuse is a legitimate goal of a state’s criminal law interference, it is unclear whether providing criminal protection against behaviour that might provoke criminal activity is a legitimate reason for criminalisation – we punish an act that might represent encouragement and seduction to possible criminal activity in the future. That means criminal law is instrumentalized, (mis)used as a risk management tool, transforming its focus from past events to (possible) future events on the basis of a very unclear causal link.

There is clearly confusion in the reasoning of why virtual child pornography should be prohibited. Who is the victim of virtual child pornography? Is it a concrete child, the idea/dignity of children, children “as such”, the morals of children? The greatest fear seems to be that the material will fall into the hands of children: according to one scenario a child could be emotionally or otherwise psychologically hurt; according to a second scenario, a child could take it as a normal (or even fun) thing and would easily fall prey to a child molester. However, that means we are prohibiting adults from material protected by free speech, in an attempt to prevent children from obtaining it.

In defining types of child pornographic material, the EU Council Framework Decision is less strict. A Member State may exclude from criminal liability:[10]
- images of children having reached the age of ***ual consent that are produced and possessed with their consent and solely for their own private use (for production and possession),
- images of a real person appearing to be a child that was in fact 18 years of age,
- virtual child pornography that is produced and possessed by the producer solely for his or her own private use.

Similar to the above mentioned provisions of the Convention, the Child Pornography Prevention Act in the USA (1996) expanded the ban on child pornography. It explicitly included visual depiction of a computer or computer-generated image or picture “that is, or appears to be, a minor”.

The provision was challenged before the Supreme Court. The crux of the case, Ashcroft v. Free Speech Coalition[11], was the following question: does the provision “appears to be a minor” engaging in ***ually explicit conduct, breach the first Amendment to the constitution (freedom of speech)?

Let us turn to the fundamental arguments for the constitutionality of the provisions on virtual child pornography that occurred in the case. The government claimed the following:

• it represents indirect harm to children, because it can lead to child abuse; it was rebutted, the causal link is indirect and contingent,
• it represents a tendency to persuade the audience to commit crimes; it was rebutted: not a sufficient reason and a remote connection between speech that might encourage thoughts/impulses and resulting child abuse,
• it is a part of eliminating the market of child pornography; it was rebutted, virtual images market exists independently of the real children images market and its extinction would have no influence on the market of real child pornography,
• difficult prosecution of actual child molesters as virtual images look realistic: it was rebutted, because the government would like to pass the burden of proof (that the images are computer-generated) on to the defendant.

The conclusion is clear: the Supreme Court struck down the provisions of the Child Pornography Prevention Act as overbroad because they abridged "the freedom to engage in a substantial amount of lawful speech” and criminalized thoughts.

Let us now examine the second challenge that information-communication technology (ICT) and the internet creates for criminalisation of online child pornography:

ad2) The problem of modes of execution of offences related to child pornography

The Convention on Cybercrime incriminates:[12]
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.

There are two questions I would like to tackle here:

(1) first, when does one offer, make available and procure child pornography through a computer system in the case of hyperlinks, p-2-p technology and search engines?
(2) second, when does one possess child pornography?

Ad1)
According to the Explanatory Report to the Convention, making available meansplacing child pornography online for the use of others, the creation or compilation of hyperlinks to child pornography sites in order to facilitate access. Procuring, on the other hand, means actively obtaining child pornography (e.g. by downloading it).

a)
Let us turn to procuring with search engines. Search engines are internet services that enable fast browsing over the internet. A search engine creates a list of results based on our search parameters. In case of content-related offences, including child pornography, the question is whether search engine providers are responsible for facilitating or making available homepages containing controversial material. Directive (2000/31/EC) on electronic commerce, for instance, does not regulate the regime of search engines. Some states have adopted special provisions/statues regulating the responsibility of search engine providers; others leave the subject to the courts. The result we face today is that liability for search engines in some states equals liability for “mere conduit” (transient saving), whereby the possibilities for exculpation of internet service providers (ISPs) are the highest.

b)
Responsibility for the content of links and hyperlinks is another segment that the EU regulation does not cover. Only some states have adopted special statutes on responsibility for the content of links and hyperlinks, and equated it with the responsibility for hosting. In Germany, for example, which has not adopted a special statute about it, the criminal court in Berlin decided[13] that a hyperlink to a web page that contains illegal content can represent aiding and abetting to the criminal offence of inciting and approving of criminal offences.

c)
File sharing in P-2-P networks can also mean a user is making available illicit material for the use of others. However, the very essence of P-2-P is that users have access to the disc spaces of other users. Such a kind of file sharing system means one is unknowingly facilitating the transfer of illicit material over one’s computer by merely using the technology.

Ad2)

The criminalisation of possession of child abuse material is perhaps even more problematic. The Convention on Cybercrime criminalises possession, but it allows parties not to apply that provision. In contrast, again, there is no equivalent provision in the EU Council’s Framework Decision.

When can we talk about possession in the case of p-2-p technologies and in the case of web browsing? Legal theory initially required that the material was saved to the computer hard disc or similar medium that enables permanent storage of data. However, the technology of the internet blurs such clear demarcations. For instance, cookies are almost automatically installed on a user’s hard disc during web page browsing. Additionally, so called cache (i.e. RAM memory that is set aside as a specialized buffer storage that is continually updated) also automatically saves data about web pages a user has visited.

The question, therefore, is whether the user can be held criminally responsible for the content of temporarily saved data in the cache of his or her computer? For instance, in the case that a user has coincidentally visited a homepage containing child pornography but did not delete the temporary storage? German legal theorists say “yes”. It is a criminal act of omission.

The other problem concerning possession is the difference between deleting and destroying computer data. Although a user can delete data, the same data can still be recoverable from the hard disk with the use of specialist forensic techniques and equipment.[14]

conclusion

The most convincing and legitimate reason for prohibiting child pornography is to protect minors from exploitation in the production of pornographic material. However, this is clearly not the reason for the content-related offence of virtual child pornography.

Offences related to child pornography that include

• the definition of a child as a person under 18 years of age
• computer generated images produced through technology and
• criminalisation of any kind of possession

create a net-widening effect and are criminalising on-line activities more than their off-line counterparts. The only reason for the criminalization of virtual child pornography seems to be inefficient prosecution of the ***ual exploitation of children in the creation of real child pornography.

Criminalization of virtual child pornography, together with the wide responsibilities of ISPs under the Data Retention Directive and the criminalization of copyright or trademark infringements and patent infringements under the Intellectual Property Rights Enforcement Directive, are but symptoms of a general process we are witnessing today - boosting criminalization in cyber space.
















[1] Dr. Aleš Završnik, Junior Research Associate, Institute of Criminology at the Faculty of Law, Ljubljana, Slovenia. Poljanski nasip 2, SI-1000 Ljubljana, Slovenia. E-mail: ales.zavrsnik@pf.uni-lj.si.

[2] 2004/68/JHA of 22 December 2003.

[3] 458 U.S. 747 (1982).

[4] Council of Europe's Convention on Cybercrime, Title 3 – Content-related offences, Article 9 – Offences related to child pornography:
2) The term “child pornography” shall include pornographic material that visually depicts:
a. a minor engaged in ***ually explicit conduct;
b. a person appearing to be a minor engaged in ***ually explicit conduct;
c. realistic images representing a minor engaged in ***ually explicit conduct.
3) For the purpose of paragraph 2 above, the term “minor” shall include all persons under 18 years of age. A Party may, however, require a lower age-limit, which shall be not less than 16 years.

[5] Point 100 of the Explanatory Report to the Convention on Cybercrime.

[6] Article 9/2/a.

[7] Article 9/2/b.

[8] Article 9/2/c.

[9] Paragraphs 93 and 102 of the Explanatory Report to the Convention on Cybercrime.

[10] Article 3, paragraph 2 of the Council Framework Decision 2004/68/JHA on combating the ***ual exploitation of children and child pornography.

[11] 122 S. Ct. 1389 (2002).

[12] Council of Europe's Convention on Cybercrime, Title 3 – Content-related offences, Article 9 – Offences related to child pornography:
1) Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right, the following conduct:
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.

[13] Case AG Berlin, 260 DS 857/96, 30. June 1997. URL: www.netlaw.de/urteile/agb_01.htm.

[14] Check for instance R v. Ross Warwick Porter case.