Internet Child Pornography and the Law

National and International Responses

Yaman Akdeniz

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317113645
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

This book provides a critical assessment of the problem of internet child pornography and its governance through legal and non-legal means, including a comparative assessment of laws in England and Wales, the United States of America and Canada in recognition that governments have a compelling interest to protect children from sexual abuse and exploitation. The internet raises novel and complex challenges to existing regulatory regimes. Efforts towards legal harmonization at the European Union, Council of Europe, and United Nations level are examined in this context and the utility of additional and alternative methods of regulation explored. This book argues that effective implementation, enforcement and harmonization of laws could substantially help to reduce the availability and dissemination of child pornography on the internet. At the same time, panic-led policies must be avoided if the wider problems of child sexual abuse and commercial sexual exploitation are to be meaningfully addressed.

Chapter 1
Introduction

The availability and distribution of child pornography through the Internet has become a social concern for society since the mid-1990s¹ when paedophiles started using this medium to share sexually explicit content. These activities take place within a ‘subculture [that] operates beyond the boundaries of any particular state or legal jurisdiction and represents a new pattern of globalized crime and deviance’.² At the time of Operation First-Out in April 1994 it was acknowledged that the police in England and Wales knew ‘nothing about the Internet or the strange world they were about to encounter’.³ This personal ignorance was reinforced by the technological shortcoming that officers were only able to examine the UNIX computer machine confiscated in the operation with the help of US Customs officers. Following this ‘enormous step into the unknown’,⁴ attempts at regulating the availability of child pornography on the Internet has taken centre stage because of its sensitive nature and its links to the sexual exploitation of children.

The impact and the role of the Internet in the production, dissemination and collection of child pornography have been assessed by a number of authors⁵ in recent years and there is a general consensus that ‘the Internet has increased the range, volume, and accessibility of sexually abusive imagery, including child pornography.’⁶ This book takes as its theme child pornography law within the context of the Internet. It sets out to provide a critical assessment of the problem of Internet child pornography and its governance through legal and non-legal means, including a comparative assessment of laws and policy initiatives in England and Wales, the Unites States of America and Canada. In Part One, ‘National Approaches to the Problem of Child Pornography’, existing laws and regulations within these jurisdictions and the associated case law are examined to assess their effectiveness and limitations. Consideration is given to the emphasis placed upon core values such as freedom of expression in the treatment of computer-generated child pornography. In the United States and Canada recent government legislative action has faced constitutional challenge and this remains a ‘deeply controversial area’.⁷

As one might expect, the legal situation as regards the Internet is far from clear and settled. The global, decentralized and borderless nature of the Internet creates a potentially infinite and unbreakable communications complex which cannot be readily bounded by one national government or even several or many acting in concert. The decentralized nature of the Internet moreover means that there is no unique solution for effective regulation at a national level.⁸ In the words of Hirst and Thompson, ‘nation-states have become the local authorities of the global system’⁹ in fragmented postmodern states; this is certainly true for the control and policing of Internet child pornography. Criminal law is traditionally associated with nation-states and policing is a core activity of nation states. However, this legitimate activity is unsettled within a borderless medium such as the Internet.¹⁰ The policing of Internet child pornography is possible at a national level only when the perpetrators are within the jurisdiction of the nation-state, or when extra-territorial policing activity and co-operation is possible.

Consequently, the governance of Internet child pornography requires a collective and ‘multi-pronged response to a multifaceted problem’¹¹ in which both public and private bodies are involved at various levels. This pluralistic Internet governance approach as it is emerging may include several layers: the National (and the local), Supra National (for example, European Union), Regional (Council of Europe) and International (United Nations). According to Healy, ‘child pornography is a pressing problem on local, national, and international levels and…all nations have an important part to play in the solution.’¹² The effect of supranational, regional and international developments on nation-state governance cannot be underestimated, and the aligning of strategies and policies is necessary in the search for common solutions for Internet related problems. There are still many countries around the world that do not have specific legislation on child pornography. In the words of the UN Special Rapporteur on the sale of children, child prostitution and child pornography, ‘this legal vacuum leaves a dangerous gap that exposes children to the risk of abuse, further increased by the impunity factor.’¹³ For this reason efforts to harmonize laws at an international level constitute an important step in the fight against the sexual exploitation of children and child pornography. Part Two of this book, ‘Supranational and International Approaches’, details and assesses important developments in this area.

As technology advances, legal systems will inevitably often struggle to keep pace. This has proven true in relation to the issue of Internet child pornography.¹⁴ Governing Internet child pornography may thus comprise not only regulatory action by governments but also self-regulation (by Internet Service Providers), co-operation with ISPs (notice and takedown provisions to remove illegal content), co-regulatory initiatives (creation of hotlines to report illegal content), and education and awareness campaigns. An assessment of the utility of additional and alternative methods of regulation, especially in the field of self-regulatory and co-regulatory initiatives for fighting Internet child pornography, is provided in Part Three, ‘Internet Service Providers’ Liability and Self-Regulation’.

PROBLEM OF PAEDOPHILIA AND CHILD PORNOGRAPHY

Paedophilia is commonly understood as a sexual preference or form of expression that involves fantasies and imaginings about sexual activity with children. A 1986 Report of the US Senate Permanent Subcommittee on Investigations on Child Pornography and Paedophilia stated, ‘no single characteristic of paedophilia is more pervasive than the obsession with child pornography.’¹⁵ While it is often argued that pornography should not be proscribed on the basis of freedom of speech arguments, there is a general consensus that a line should be drawn with child pornography.¹⁶ In most cases, child pornography is a permanent record of the sexual abuse of an actual child (except in the case of pseudo-photographs or computer generated images, drawings, cartoons and paintings). Child pornography involving sexual abuse and exploitation of children is undoubtedly ‘linked to child prostitution, child sex tourism and the trafficking of children for sexual exploitation’.¹⁷ Put simply, there is no ‘acceptable “liberal” position when it comes to the sexual victimization of children’,¹⁸ and debate surrounding child pornography accordingly remains a deeply sensitive and emotive topic.¹⁹

At the outset it is necessary to take account of the ways in which child pornography can constitute child abuse. According to a US Senate Committee report, child pornography ‘is a particularly pernicious evil, something that no civilized society can or should tolerate. It abuses, degrades, and exploits the weakest and most vulnerable members of our society, our children.’²⁰ Children are not and should not be seen as appropriate sexual partners, and the criminalization of child pornography not only aims to prevent ‘the harm that flows from the use of children in pornography’²¹ but also ‘the harm that flows from the very existence of images and words which degrade and dehumanize children.’²²

Child pornography involving real images of children is therefore a form of sexual abuse and exploitation in which the depiction of children engaging in sexually explicit conduct poses a serious threat to the physical and mental health, safety and well-being of children. Real images (as opposed to computer generated images, and drawings) of child pornography are seen as a permanent record of the victim’s abuse, and its creation and distribution is considered a serious crime in most countries. It is often argued that child pornography can also be used for grooming children into child pornography. In Child Pornography, Dr O’Brien explains what she terms the ‘cycle’ of child pornography:

(1) child pornography is shown to a child for ‘educational purposes’; (2) an attempt is made to convince a child that explicit sex is acceptable, even desirable; (3) the child is convinced that other children are sexually active and that such conduct is okay; (4) child pornography desensitizes the child, lowering the child’s inhibitions; (5) some of these sessions progress to sexual activity involving the child; (6) photographs or films are taken of the sexual activity; and (7) this new material is used to attract and seduce yet more child victims.²³

Additionally, the Williams Committee noted in the late 1970s:

Few people would be prepared to take the risk where children are concerned and just as the law recognizes that children should be protected against sexual behaviour which they are too young to properly consent to, it is almost universally agreed that this should apply to participation in pornography.²⁴

The possibility of such use for grooming purposes is often used as a justification for the criminalization of possession of child pornography as well as for the criminalization of the creation, making, distribution and the possession of computer generated pseudo-photographs and images of children in many jurisdictions. Pseudo-photographs or even videos can be created by computers by superimposing a child’s facial image on an adult’s body or on another child’s body without using any real children during the process. Such images give rise to special concerns which are discussed at various points throughout this book.

PAEDOPHILIA, COMPUTER NETWORKS AND THE INTERNET

Neither paedophilia nor the use of computer networks to disseminate digital content involving child pornography are new phenomena. Paedophilia networks have been using computer networks for such purposes from as early as 1986.²⁵ References to digital content involving child pornography being exchanged within local computer bulletin board systems in Britain can be traced back to 1985.²⁶ The problem became more prominent in the 1990s, however, with the widespread use of the Internet. The increase in prosecutions and convictions involving child pornography since the mid-1990s is related to the exponential growth of Internet access from homes,²⁷ and the availability and circulation of child pornography over the Internet. The volume of abusive digital images and videos of children discovered by law enforcement agencies following successful operations suggest that paedophile networks, as well as individuals interested ...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Contents
• List of Graphs and Tables
• List of Cases
• Acknowledgements
• 1 Introduction
• Part One National Approaches
• Part Two Supranational and International Approaches
• Part Three Internet Service Providers' Liability and Self-Regulatory Approaches
• Bibliography
• Index