Wed

05

Oct

2016

Countering the dangers of online pornography - shrewd regulation of lewd content.

1. Introduction

This Article will detail how the UK has responded to the greater

risks posed by illegal online content by successively extending the

reach of the substantive criminal laws and by taking preventative

measures. It will focus on the example of laws on obscene content on the

internet and associated online behaviour.

For this purpose the Article starts by pointing to the specific

risks created by the information society. It will argue that the

internet has not only created greater opportunities for the distribution

of legal content it has also created new ways for illegal content to

reach a wider audience.

The Article will show that the UK has responded to these greater

risks by extending the reach of the criminal law far beyond its

pre-internet limits. Here the focus will be on the new laws on grooming

children in chat rooms, the new laws on extreme pornography and the

criminalisation of virtual child abuse images, notably the

criminalisation of non-photographic pornographic images of children.

These new laws raise difficult questions as to where to draw the line

between risk reduction and civil liberties. I base my arguments on the

premise that any restrictions of civil liberties by the criminal law

must be justified by the prevention of harms, rather than public

morality. The application of this principle will show where the UK

legislation has overshot the mark.

Considering the greater risk posed by the internet, it becomes

increasingly clear that focusing on criminal law is insufficient. The

multitude of crimes committed and limited resources for enforcement

necessitate more effective crime prevention and enforcement strategies.

These preventative steps cannot be taken by the government alone, but

must involve all stakeholders of civil society and, in particular,

internet intermediaries. The article will outline some of the steps

taken in the UK in this respect. The Article will conclude with an

evaluation of the measures discussed in the previous parts.

2. The risks of the information society

In this part I will sketch what I term the 'risks of the

information society'. Much has been written about the internet and

the inherent risk that it is used for disseminating and accessing

illegal content. [2] Therefore a brief summary of this discussion will

suffice here. The discussion can be split in three parts. The

'risks of the information society' (as well as the

internet's positive transformative effects for information access

and freedom of expression) are due to three factors (i) the

'borderless' nature of the internet, (ii) the complexity of

the technology layers and (iii) its accessibility, efficiency and

convenience.

The cross-border nature of the internet and the intangible nature

of the content mean that the offender can target illegal content (for

example by uploading materials and making them thus available) from one

jurisdiction to persons accessing the materials located in another

jurisdiction. This leads to the twin problems of jurisdiction [3] and

cross-border enforcement. [4]

The jurisdictional problems have directly led to the expansion of

the criminal law by penalising possession of certain illegal content,

where previously only the active publication or distribution of such

materials was a criminal offence, as will be discussed below. [5]

Secondly the complexity of the technology makes the investigation

and prosecution of crimes resource and expertise intensive and, hence

expensive. One illustration for this is tracing the way messages are

routed across the internet for example where criminals are spoofing

their identity or location to avoid detection. Another example is the

technological arms-race between the police and sophisticated criminals

(who use encryption and peerto-peer file sharing technologies instead of

websites to distribute illegal content for example). The possibility of

simultaneous interaction also opens up new possibilities of criminality

(for example criminals planning their crime in a chat room or child

abusers grooming children on social networking sites, as discussed

below).

The third factor is the widespread availability of and access to

the internet, for viewing, for downloading and for uploading of content.

The convenience and asocial nature of access (without leaving the home

or office) and the perceived anonymity may lower inhibitions and



encourage certain persons to seek out illegal content, where they would

not have bothered to obtain it in the offline world. [6] Prosecution

figures for the offence of possessing child pornography have risen

sharply in proportion to the widespread access to the internet and the

dissemination of such content in newsgroups, through websites or

peer-to-peer technology. [7]

That the easy availability of images of child sex abuse is a

disturbing development has been shown by Operation Ore. This

investigation followed from the prosecution of a couple in the US who

had run a website portal featuring child sex abuse images and the FBI

handed over the payment records of UK residents who had downloaded

images from the website to the UK authorities. By 2006 the UK

authorities had received the details of 7,100 suspects (sic) and

Operation Ore had resulted in 2,400 convictions. While some of the

convictions were later challenged as being unsafe on the basis that the

defendants had become victims of credit card fraud [8], these figures

are nevertheless disconcerting. The police had found child sex abuse

images on the computers of most suspects seized as a consequence of this

investigation. The shockingly large number of suspects and resulting

convictions in this case arising from one single internet portal seems

to indicate, sadly, that the consumption of this heinous content through

the internet is a much more prevalent and widespread phenomenon than one

may have thought. In a similar vein, the Guardian newspaper has reported

that a substantial number, a total of almost 1000 persons, were

convicted of publishing or possessing such content in 2007. [9]

While ultimately it is probably impossible to quantify the

'risks of the information society' in a meaningful and

objective way, these statistics confirm the suspicion that the internet

leads to an increase in the dissemination of child sex abuse and other

obscene content. The high number of people viewing and downloading such

content may have impacts on human behaviour (propensity to violence,

child abuse etc) and challenge the practical feasibility of law

enforcement.

Certain high profile criminal cases which were widely reported in

the media, such as the Coutts murder trial [10] (which will be discussed

further below) have also increased the public perception that the

internet enables the dissemination of criminally obscene materials

leading to deviant behaviour in the real world and that 'something

should be done'. As so often, this call for 'something should

be done' leads to the expansion of the reach of the criminal law,

as will be discussed in the next part.

3. Extending the reach of the criminal law

In this Part it will be demonstrated how the UK has responded to

the dangers of the information society by substantially expanding the

reach of the criminal law in the area of obscene content. The law in

this area has been extended in three respects: (i) the creation of new

inchoate offences, (ii) extending the types of activities or types of

materials within the scope of the criminal offences, and (iii)

preventative measures.

3.1 Inchoate offences

Inchoate offences criminalise what are merely preparatory acts (in

relation to the main offence as previously defined)--relying heavily on

the intention (mens rea) of the defendant to carry out the main criminal

act or to bring about the main criminal result, even where there is as

yet no criminal harm. Therefore, (depending on the offence in question)

they are frequently criticised as mere 'thought' crimes,

especially if the defendant's preparatory conduct is ambiguous in

the sense that it can have more than one explanation. Inchoate offences

allow more flexibility to the prosecution and allow earlier action by

law enforcement. In other words, they add significant strings to the

prosecution's bow and their main purpose is harm prevention. [11]

One example in relation to the 'information society risks'

described in this Article is the group of 'grooming' offences

created by the Sexual Offences Act 2003, which will be discussed next.

3.1.1 Grooming Offences

It seems that child abusers use internet applications such as chat

rooms and social networking sites (such as Facebook, Bebo and MySpace)

to contact children and teenagers and to obtain a false sense of trust

(often by posing as a teenager themselves). Child sex abusers lure the

child into disclosing personal details (such as her address, mobile

phone number or school), to encourage the child to send indecent

pictures and to use these indecent pictures or other details to

manipulate and to blackmail her further into a sinister spiral of more

revealing pictures or even to arrange a meeting and to carry out

physical abuse. [12]

In order to encounter this threat, it was felt necessary to create

a range of new offences [13] in the Sexual Offences Act 2003: arranging

or facilitating the commission of a child sex offence in Section 14 [14]

and meeting a child following sexual grooming in Section 15. Section 15

applies if the defendant has met or communicated with a child [15] (for

example through chat or instant messaging at a distance) on at least two

occasions and subsequently intentionally meets the child, or travels

with the intention of meeting her or arranges to meet her in any part of

the world, or the child travels with the intention of meeting the

defendant. [16] The preparatory communication ('grooming')

need not be of any sexual nature and may include an entirely platonic

'relationship' (at least on the face of it). [17] The conduct,

grooming, is not defined in the Act. [18]

The defining requirement is that the defendant's intention

must be to do anything to or in respect of the child which involves the

commission of a relevant sexual offence in any part of the world. [19]

They are inchoate offences, focusing largely on the risk of certain

types of behaviour and the intention of the defendant. [20] The maximum

sentence is a prison term of 10 years. [21]

If we assume that an adult 'innocently' communicates

twice with a child in a chat room and then travels to meet the child,

these actions in themselves are not harmful. The difference between an

innocent and a criminal act is the intention (mens rea) of the

defendant. [22] Since this is an internal factor, mens rea may be

difficult to prove and can only be inferred from the circumstances.

Unusual circumstances may lead to false inferences. This may put

innocent citizens at risk. Hence, the trouble with these new offences is

that they criminalise what may, on the face of it, be innocent conduct

before any indecent pictures are taken or sexual activity is carried

out. In fact no child sex offence may ever be carried out. Moreover an

attempt, itself an inchoate offence, may be charged even where the

defendant has not yet made any preparations to meet the victim. This

places criminality even further away from actual harmful conduct. In R v

Robson [23] the defendant had asked a sex worker on more than one

occasion to find him a girl of 12 or 13 to engage in sexual activities

and he was charged with the Section 14 offence of arranging of

facilitating the commission of a child sex offence. The Court of Appeal

found that his conduct may amount to an attempt of 'arranging'

and 'facilitating', even where the person requested did not

agree to carry out the request (and in fact informed the police). [24]

While this case did not involve remote communication via the

internet it illustrates the breadth of the offence of 'facilitating

and arranging'. In fact following this interpretation of Section 14

in R v Robson, if a person communicates remotely with a child (in a chat

room or using email or instant messaging for example) and requests

(perhaps insists) to meet the child, this may be sufficient for charging

the Section 14 offence, provided he has the requisite intention and

there may be no need to rely on the narrower offence outlined in Section

15.

Moreover, an attempt of Section 15 is regularly charged where it is

impossible to carry out a child sex offence, where the defendant is

communicating with an undercover police officer who poses as a child on

a social networking site, for example. In R v S the defendant had

entered a social networking site and made contact with another user who

called herself Helen and stated that she was 14 years old- they

communicated over a period of 17 days and the conversations turned

sexual in nature. The defendant invited 'Helen' to meet him

and no doubt was surprised -when he was arrested at the agreed meeting

point- to find out that he had been conversing with an adult police

officer. His sentence was reduced on appeal to 16 months'

imprisonment. [25]

In addition, if there is not sufficient evidence to charge the

accused with attempt, an application may be made for a Sexual Offences

Prevention Order (SOPO) [26] under Section 104 of the Sexual Offences

Act 2003. For this it is sufficient that the accused has been cautioned

for a relevant offence, which could prevent him to use chat rooms or

social networking sites. [27] Likewise, if the defendant has been

convicted of an attempt, even if there have been no previous similar

offences, a SOPO may be ordered. [28]

The aim of the inchoate offences in Sections 14 and 15 of the

Sexual Offences Act 2003 is to criminalise conduct before any harm has

been done to a child- hence the goal is harm prevention. This has been

justified by the need to protect children from harm when interacting

online- considering the gravity of this risk, preventative action is

required. However it can also be argued that this extension of the

criminal law puts innocent citizens at risk and it is at least

questionable whether the law has found the right balance between

protecting children and protecting citizens from unfair accusations.

In the same preventative mode, the criminal law has been extended

to cover new types of obscene content, which will be examined in the

next section.

3.2 Extending the actus reus

3.2.1 Possession Offences

The traditional compromise between freedom of expression and

protection of morals and the protection of dignity has been to prohibit

the publication and distribution of certain forms of obscene content,

but to tolerate the private, non-commercial possession of such

materials, for example in the Obscene Publications Acts 1959 and 1964.

[29] The prosecution of possession offences also is more difficult, more

resource intensive and requires a greater invasion of privacy [30]. The

greater invasion of privacy and greater restriction of the access to

information are the reasons why the law drew a line between

dissemination and private possession, criminalising the former but not

the latter.

The problem with basing criminality on publication is that it

creates problems in the borderless environment of the internet. If

obscene content is produced, uploaded and hosted in a foreign

jurisdiction and only downloaded and 'consumed' in the local

jurisdiction, and if mere possession of obscene materials is no offence

in the local jurisdiction, suppression of obscene content in the local

jurisdiction may be difficult, as local enforcement agencies may have no

jurisdiction against foreign suppliers or, in any event, cannot directly

enforce against such suppliers. [31] Therefore the law has been amended

to criminalise the mere possession of certain types of content.[32] As

we have seen above [33] the possession of child sex abuse images has

already been criminalised in 1988, before widespread access to the

internet. Recently however the possession offences have been extended

considerably to cover new types of content, in order to deal with the

specific challenges posed by the internet.

3.2.2 Criminalisation of the possession of new types of content

3.2.2.1 Extreme pornography

The Criminal Justice and Immigration Act 2008, which came into

force on 26. January 2009, introduced a new offence of possessing an

extreme pornographic image. [34] While this new offence applies to

online and offline extreme pornography, the driving factor behind its

introduction was the easy access and convenient availability of such

material through the internet. [35] In that sense the availability of

'extreme pornography' to broad sections of the population is a

new quantitative problem, which did not exist in the

'pre-internet' days. In this sense, the internet has enabled a

new distribution channel which can be exploited by unscrupulous

entrepreneurs who make a large profit from this type of content. [36] It

would be naive to regard the issues raised by this type of content

merely as an issue of the freedom of speech of individual groups who

engage in certain types of sexual practices and who exchange this type

of material without commercial motive.

One of the factors behind the proposal of this legislation was the

evidence presented in the trial of Coutts, the convicted murderer of

school teacher Jane Longhurst. He had downloaded and consumed extreme

pornography before he committed the murder. [37]

Extreme pornography would, in many instances, fall under the

Obscene Publications Acts, but as has been explained above, these Acts

do not criminalise the mere possession of such material, hence the

requirement for the new legislation. [38] As has been pointed out above

such material may be commercially produced and hosted and published

abroad where it may be largely out of the reach of UK law enforcement.

Since therefore the supply side cannot be controlled effectively it was

felt necessary to restrict demand though the introduction of this new

offence. [39]

Extreme pornography must both be pornographic and extreme. [40]

This means that the material must be of such a nature that it must

reasonably be assumed to have been produced solely or principally for

the purpose of sexual arousal. [41] In relation to a series of images

(such as a film), the images must be seen in their whole context and an

image may not be found pornographic by virtue of it being part of a

narrative, even if by itself it might have been found pornographic. [42]

For it to be regarded as being extreme the image must be obscene

[43] and it must depict in an explicit and realistic way

'(a) an act which threatens a person's life or

(b) an act which results, or is likely to result, in serious injury

to a person's anus, breasts or genitals,

(c) an act which involves sexual interference with a human corpse,

or

(d) a person performing an act of intercourse or oral sex with an

animal (whether dead or alive),

and a reasonable person looking at the image would think that any

such person or animal was real.' [44]

Hence, extreme pornography covers realistic depictions of so-called

'snuff videos', particular types of violent pornography,

necrophilia and bestiality. The Act does not define the term

'serious injury' which leaves the question open what amounts

to 'serious injury'. In particular it is unclear whether this

refers to actual bodily harm (ABH) or grievous bodily harm (GBH). In

some ways the act is also under-inclusive, as a depiction of violence in

a sexual context causing GBH to parts of the body not mentioned in

subsection (b) without being an act threatening a person's life

under (a) would not be included in the possession offence, which may be

just as 'extreme'. It also does not cover depictions of other

extreme forms of sexual violence such as rape.

Section 64 contains exclusion for films which have been classified

by the British Board of Film Classification (BBFC), unless they are

taken out of context in such a way that they become pornographic. Of

course, this does not mean that extreme pornographic films subject to

the classification system are exempt. The BBFC has to take into account

Section 63 and refuse to classify a film if it falls within the

definition of extreme pornography. [45] One of the difficult issues

arising from the Act will be to distinguish between pornography

(intended for sexual arousal) and art.

For films, ultimately this issue will be left to the BBFC and, in a

case before the criminal courts, a jury. The perennial problem here is

that 'beauty lies in the eyes of the beholder'. For example

could a series of images, such as the murder scene in Hitchcock's

thriller 'Psycho', not constitute pornography to a certain set

of eyes (while it may constitute art to a more innocent set of eyes)?

Section 65 provides a defence if (a) the person had a legitimate

reason for possessing the image, (b) that the person had not seen the

image and did not know and had no cause to suspect it to be extreme

pornography [46] or (c) that the image was sent without request and that

the person did not keep it for an unreasonable amount of time. [47]

Section 66 provides a further defence for certain consensual acts, which

(for the obvious reason that an animal cannot consent to such an act)

does not apply to bestiality.

For the Section 66 defence, the defendant has to show that the act

depicted did not inflict any non-consensual harm on any person and in

the case of necrophilia, that the act did not involve a real corpse.

[48] Non-consensual harm is either harm to which a person cannot consent

to by law [49] or harm to which a person in fact has not consented to.

[50] But the defence is only available to the persons depicted, not to a

person who does not appear in the images (such as a director or producer

or a person possessing this content). [51] Therefore this defence only

applies to 'home-made' pornography, which does not leave the

circle of those acting in it.

In other words, the offence applies to depictions of realistic, but

simulated activities (even if no harm was inflicted) and to consensual

activities (where harm [52] was inflicted with the actual consent of the

person harmed) if the depiction is in the possession of a person not

acting in the image.

The punishment for the possession of images of violent pornography

as defined in section 63 (a) and (b) is a maximum prison sentence of

three years and/or a fine. [53] The punishment for possession of

necrophilia or bestiality defined in section 63 (c) and (d) is a maximum

prison term of two years and/or a fine. [54]

Most ordinary people (including the author!) regard extreme

pornography as disgusting and extremely offensive. Although I have not

conducted empirical research into this area, I assume that many examples

of extreme pornography depict violence by men against women in a sexual

setting and if the new provisions contribute to preventing the social

acceptability of such material, this seems an important step to protect

the bodily integrity and dignity of women (or indeed other subjects of

extreme pornography).

At the same time, it is questionable whether what a majority

regards as not acceptable should be the guiding principle for drawing

the line between lawful and criminal content. In a liberal society the

only justification for criminalizing certain conduct should be whether

this conduct is harmful to interests which should be protected by the

criminal law ('harm principle'). [55] This restriction of the

concept of public morality is based on John Stuart Mill's theory on

moral rights [56] and HLA Hart's treatise on the interplay between

law, liberty and morality [57] and Joel Feinberg's work [58]. It

should also be pointed out that the principle that the criminal law

should only protect against harms, but not enforce matters which should

be left to private morality was behind the Wolfenden Report of 1957

recommending the abolition of homosexuality offences between consenting

adults. [59]

John Stuart Mill has described this principle in this manner:

'That principle is that the sole end for which mankind are

warranted, individually or collectively, in interfering with the liberty

of action of any of their number is self-protection. That the only

purpose for which power can be rightfully exercised over any member of a

civilized community against his will is to prevent harm to others.'

[60]

HLA Hart has argued in support of the conclusions of the Wolfenden

Report that a distinction must be made between an affront to public

decency and acts taking place in private which are merely immoral

according to conventional morality. [61] He refers to Miil's harm

principle that coercion may justifiable be used to prevent harm to

others [62] and expressly points out that the mere distress caused by

knowing that other persons engage in immoral acts is insufficient

'harm' [63]. The value of individual liberty demands that the

acceptance of the principle that an individual may do what he wants,

even if others are distressed unless there are good reasons for

prohibiting the conduct. [64] These good reasons are harm prevention.

The harm principle has also been applied in a Canadian Supreme

Court case of 1992. [65] The Court held that pornography could only be

outlawed in order to avoid harm to society [66] and that the freedom of

speech could not be restricted simply by reference to a standard of

public and sexual morality [67]. However in this case the Court upheld

the Canadian legislation on the basis that there is a 'substantial

body of opinion that holds that the portrayal of persons being subjected

to degrading or dehumanizing sexual treatment results in harm,

particularly to women and therefore to society as a whole'. [68]

Joel Feinberg has further refined the concept of harm which

justified the imposition of criminal penalties. He describes the harm

principle as follows: 'state interference with a citizen's

behavior tends to be morally justified when it is reasonably necessary

(...) to prevent harm or the unreasonable risk of harm to parties other

than the person interfered with'. [69]

Feinberg defines 'harm' through the notion of interest

thus: 'one person harms another (...) by invading, and thereby

thwarting or setting back, his interest.' [70] However he also

posits that not every harm is a legal wrong: 'that is why the harm

principle needs to be supplemented by an elaborate set of mediating

maxims, interest-rankings, principles of justice, and the like, before

it can be applied to real legislative problems.' [71] He argues

that only wrongs that are setbacks to recognised interests fall within

the harm principle. [72]

In principle one can think of three possible harms which Section 63

attempts to address: (i) the actual infliction of grievous bodily harm

(GBH) or actual bodily harm (ABH) or the killing of a real person; (ii)

where no actual bodily harm has been inflicted (for example in a

simulated scene) the images may encourage or stimulate actual infliction

of bodily harm on a real person in the offline world and (iii) harm to

human dignity and public morality.

As to (i), if extreme pornography depicts the real infliction of

GBH on or the killing of a real person, the harm to bodily integrity

justifies the prohibition. As to (ii) Section 63 (7) expressly

stipulates that the image must portray in an explicit and realistic way

the extreme acts listed. But there is no requirement that the acts

depicted must be real, in other words the legislation does apply to

simulated conduct, provided it looks real. So if the conduct is

simulated, a justification of the criminalization would have to rely on

(ii) as a ground for justification. It is arguable that the causal link

between the consumption of simulated extreme pornography and committing

such acts in real life in the offline world is notoriously difficult to

prove. [73] By the same token it is also difficult to disprove such a

causal link. [74] The internet has made it much more convenient to

consume extreme pornography in great quantities. This may in a person,

who is predisposed, lead to the nurturing of an obsession leading to the

commission of violent offences in the real world. As Leslie Wilson has

put it eloquently in her commentary in the Guardian on the Coutts trial:

'But what I saw at Coutts' trial was the story of a man

who nurtured and encouraged that part of himself by visiting

pornographic internet sites--sites that went way beyond images of women

being bound up and gagged. They featured violent sex, strangulation,

rape and torture. Coutts downloaded images from these sites--as I

remember, an enormous number in the days immediately preceding the

murder (...) The human psyche is so much more malleable than it's

comfortable to think.' [75]

Therefore I argue in this article that we should err on the side of

caution. The stakes are too high: violent sexual crime committed against

a person leaves serious harm and widespread distribution of extreme

pornography creates a real risk (even though impossible to quantify) of

such harm. Hence (ii) offers a justification for restricting the

possession of such material by the criminal law.

Finally justification (iii) may be even more controversial- obscene

pornography is always an infringement of human dignity and public

morality (in terms of being offensive to a majority), but should this be

a sufficient ground to criminalise the mere possession of such content?

Following the harm principle this question has to be denied. However

provided the content is realistic so as to create the risk of inducement

described above there would be no need to rely on (iii) as (ii) already

provides justification, since the Act only applies to

'realistic' content. [76]

A separate issue, but resurrected by this debate on extreme

pornography, in the context of sado-masochistic (S & M) practices,

is whether a person should be able to consent to ABH, especially if it

only causes temporary injury. The position under English law is that a

person can only consent to ABH if this is justified by some notion of

the public interest (such as sports) and that S & M practices are

not in the public interest. The main authority for this position is the

House of Lords decision in R v Brown >[77] and the confirmation by

the ECtHR in the same case that Member States have a wide discretion to

criminalise certain sexual conduct even if carried out in private

between consulting adults. Hence according to ECtHR jurisprudence the

criminalization of S & M does not constitute an unjustified

infringement of Article 8. By analogy, this may mean that the

criminalization of the possession of images depicting S & M is not

an unjustified restriction of the freedom of speech under Article 10

ECHR. [78] However, it would have been preferable to exclude trivial

harm from the scope of the offence, by expressly limiting its

application to the depiction of GBH in section 63 (7) (b) as this would

have more clearly based the Act on the harm principle under (i) or (ii).

Furthermore, less justifiable perhaps from a liberal standpoint and

the harm principle are the provisions on the possession of images of

bestiality. Clearly the production of such material may cause serious

harm to animals so that a criminal prohibition on the making of such

material is indeed justified from an animal protection point of view.

However, it is more difficult to justify the criminalisation of the mere

possession of such an image, especially in a society which allows the

private possession of other obscene materials, including depictions of

rape and given that a majority of the population has no problems with

eating animals or killing them. Furthermore forms of violent pornography

other than those defined in section 63 (such as rape) or even content

depicting extreme violence outside a sexual context may be equally

harmful, but do not fall within the scope of the Act, which is

inconsistent and it is ultimately unclear what the Act tries to achieve

at a policy level. [79]

The provisions on extreme pornography have been controversial and

are likely to remain so. However in this debate it would make sense to

make a clear distinction between, on the one hand, consensual S & M

practices and the issues related to consent to ABH and, on the other

hand, the question of harm arising from content depicting realistically

more extreme forms of simulated violence (such as so-called 'snuff

videos' or images where GBH is portrayed). While a harm based

argumentation may not justify the prohibition of the former, it may well

do so with the latter.

Similar issues arise in relation to virtual child sex abuse images

which will be discussed next.

3.2.2.2 Virtual child sex abuse images

What we are concerned with here is the scope of materials which are

covered by the criminal offences of possessing, making and publishing

child sex abuse images. In particular, the question arises whether an

image which is not a record of child sex abuse (such as a photograph)

but a fantasy image should also fall within the scope of the offences.

First, if the image is a so-called 'morphed photograph'

depicting the body of an adult and the head of a child, or a photograph

of an adult which has been digitally manipulated to represent a child

('pseudo-photographs') should this be included? Secondly

should the law criminalise images which are not photographs depicting a

real-world scene, but which are pure fantasy pictures, such as drawings

(cartoons) or computer generated images (CGI)?

The harm done by such fantasy depictions is (i) that they may

promote the acceptability of child sex abuse and encourage persons to

engage in sexual activities with children in the real world and nurture

their proclivities in this respect (as discussed above in relation to

extreme pornography), (ii) that they may be used to 'groom'

children and persuade them to engage in sexual activities. [80]

Furthermore, in relation to CGI it has also been suggested that if

CGI of child pornography was legal, real child sex abuse images may be

converted into CGI and used to stigmatize and pressurize the victims.

Thus there is a possibility that perpetrators of child sex abuse use

virtualised images of their abuse in order to groom, molest, victimise

and blackmail their real world victims. In other words, in some

instances CGI do represent real-world abuse of real children, even

though this may not be obvious from the image itself. [81]

However an inclusion of fabricated or fantasy images brings

considerable definitional challenges--where would one draw the line

between art and child sex abuse images? [82] If a picture is pure

fantasy how can one conclusively determine the age of the characters

depicted? For example, it may be extremely difficult to determine the

age of an avatar in a virtual world environment.

Pseudo-photographs have been included in the scope of the offences

under the Protection of Children Act 1978 by the Criminal Justice and

Public Order Act 1994. A pseudo-photograph is defined as an image

whether made by computer graphics or otherwise howsoever, which appears

to be a photograph. It is sufficient that the impression is created that

the person portrayed is a child. [83]

The Criminal Justice and Immigration Act 2008 included a tracing of

a photograph (whether electronic or made by other means) in the scope of

the Act. [84] So where the image is derived by tracing of a photograph

it was already included.

Finally, the Coroners and Justice Act 2009 took this one step

further and criminalised the possession of non-photographic pornographic

images of children (NPPIC). [85] The image must be grossly offensive,

disgusting or otherwise of an obscene character and it must be

pornographic (defined in the same way as for extreme pornography). [86]

For the NPPIC to be Emma Starr within the scope of the Act it must focus

'solely or principally on a child's genital or anal

region' or portray one of the sexual acts listed in the

legislation. [87] Hence for non-photographic images the subject-matter

of the picture must fall in one of these categories.

As to the question how to determine whether the person depicted is

a child the Act merely states the impression conveyed by the image must

be that the person shown is a child, or the predominant impression

conveyed must be that the person shown is a child despite the fact that

some of the physical characteristics shown are not those of a child.

[88] A child is defined as a person under 18. [89]

Presumably this definition based on 'impression' is a

factual decision for the jury to decide and is hence quite uncertain.

For example it may be difficult to decide whether an avatar based

pornographic film depicting sexual intercourse (shown, for example in

Second Life) depicts a child or an adult. This may make it difficult to

clearly distinguish between legal fantasy of sex between adults (virtual

pornography) and illegal NPPIC- the required characteristic that the

image must be obscene does not help with this distinction, since, if the

person depicted seems to be a child, the picture is automatically

obscene. The problem here is that impressions of whether an avatar is a

child or an adult may be extremely subjective, depending entirely on the

state of mind of the observer.

The same defences as for extreme pornography exist against a charge

of possession non-photographic pornographic images of children in

section 64 of the Coroners and Justice Act 2009. [90] The Act does not

explicitly criminalise the publication of NPPIC, but this would be an

offence under the Obscene Publications Acts 1959 and 1964. The maximum

penalty for the offence is a term of imprisonment of three years and/or

a fine. [91]

Cyber-libertarians may argue that such expansion of the criminal

law and the resulting restrictions on the freedom of expression and, in

particular the freedom to obtain information, are not justified by the

risks posed by pseudo- and non-photographic images of child sex abuse.

Ultimately the balance depends on one's view of whether a causal

link between the consumption of pseudo- and non-photographic images and

actual abuse can be made out and more importantly who should have the

onus of proving such causal link. [92] Different societies will come to



a different conclusion of this balancing act. [93]

In the UK, in any case the scope of what amounts to images of child

sex abuse has been significantly extended- again with the aim of

protecting children before any harm has been done to them (or to prevent

the continuing victimisation of abused children by possessing

non-photographic images of their abuse). The Act has been narrowly

defined as the image must portray specific items (as described above) so

the impact on freedom of expression has been minimised. On the other

hand the difficulty of determining the age of a virtual fantasy

character and the difficulty of distinguishing between art and

pornography may mean that the legislation is problematic.

While the above discussion has shown that the need for prevention

has led to an extension of criminal offences the same tendency can be

seen in the procedural aspects and enforcement of criminal law.

4. Prevention is better than cure

Because of the particular risks posed by the information society,

which make crimes related to the publication and possession of obscene

content more prevalent and also harder to investigate, the call for

crime prevention and an approach involving all stakeholders has grown

louder. [94]

4.1 General

Crime prevention in respect of obscene content has many facets. In

the UK, this included the creation of a specialist police agency dealing

with child abuse (the Child Exploitation and Online Protection Centre-

CEOP) which adopts a multi-stakeholder approach: staff from children

charities, payment providers, technology companies and government

experts are directly involved in its work. [95] Secondly, prevention

also involves action by payment providers to identify relevant

transactions and to prevent the use of their systems to pay for illegal

content. [96] Furthermore, another important aspect in preventing online

and offline child sex abuse is to prevent convicted child sex offenders

from re-offending. To this end, a court may issue a Sexual Offences

Prevention Order (SOPO) [97], ordering that the offender is registered,

preventing him to work with children, imposing regular notification

requirements with the police, preventing the offender from approaching

nurseries, schools, youth centres etc, and other similar requirements.

Clearly here the offenders' interests and those of society have to

be carefully balanced. For example, in a recent case [98], the Court of

Appeal held that a SOPO prohibiting a convicted offender from possessing

a computer or using the internet except for the purposes of work, study

or seeking employment and a prohibition on subscribing to a private

internet access account was draconian and disproportionate. The Court of

Appeal amended the Order in that the offender had to notify his

probation officer of any computer or mobile he possessed and he had to

ensure that the computer was able to retain a record of his internet

access and to give the probation/other police officer access to such

history on demand. Another preventative measure is to vet individuals

working with children online: the Safeguarding Vulnerable Groups Act

2006, Schedule 3 introduced a requirement that moderators of public

interactive communication services, which are likely to be used wholly

or mainly by children (such as a social networking site or chat room for

children) must be vetted as being fit to work with children and

registered with the Independent Safeguarding Authority. [99]

While it is impossible for lack of space to discuss or even list

all preventative measures here, the remainder of this Article will focus

on just one preventative measure and this is the removal of illegal

obscene content at source (if hosted in the UK) and the filtering of

content at access provider level to reduce the number of child sex abuse

images reaching UK internet users.

4.2 Internet Watch Foundation

In the UK, filtering at internet access level has been put into

effect in respect of child sexual abuse content notified to and checked

by police trained operators employed by the Internet Watch Foundation

(IWF), a private, not-for-profit company. [100]

The IWF operators decide which URLs are included on the list, which

typically contains between 500 and 800 URLs at any one time and is

updated twice a day to ensure all entries are live. [101] URLs are

assessed in accordance with UK criminal law and the Guidelines issued by

the UK Sentencing Guidelines Council. [102] The list is designed to

block only specific URLs, not the whole domain name, to reduce

over-blocking. [103] This blacklist is the basis for the filtering

implemented by British Telecommunications Plc and by most other UK

Internet Service Providers (ISPs) on a self-regulatory basis. [104]

The filtering is employed only in respect of child sex abuse images

and only for websites, not other types of content (such as peer-to-peer

file sharing). An appeal against the accuracy of the assessment is

provided. [105]

The Internet Watch Foundation states on its website about the

effectiveness of its filtering initiative:

'this initiative can help to diminish the re-victimisation of

children by restricting opportunities to view their sexual abuse and may

disrupt the accessibility and supply of images to those who seek them

out. Unfortunately, blocking cannot put an end to offenders abusing

children nor can it effectively deny determined criminals who are

actively seeking such material.' [106]

However the remit of the IWF is wider than child sex abuse content.

Within the remit are (i) images of child sex abuse hosted anywhere in

the world, (ii) criminally obscene adult content hosted in the UK, (iii)

incitement to racial hatred hosted in the UK and (iv) non-photographic

child sexual abuse images hosted in the UK.

If the content is hosted by an ISP in the UK it will notify the ISP

concerned and the police or CEOP and the content will be taken down at

source. Since most of the ISPs are members of the IWF, they co-operate

in this and the process is institutionalized. In any case an ISP would

lose its hosting immunity under Article 14 of the E-commerce Directive

2000/31/EC after notification and would risk criminal liability if it

did not comply and take the material down.

The Internet Watch Foundation [107] is also a member of the INHOPE

international association of internet hotlines which was founded in 1999

under the EU Safer Internet Action Plan, but transcends the EU- 34

states have a member hotline. [108] If the content is hosted by an ISP

in a country with a Hotline, the Internet Watch Foundation attempts to

notify the ISP via the national Hotline or police. However if the

content cannot be taken down at source, filtering by UK internet access

providers is the only option to avoid (or reduce) exposure to the

material. But filtering is only carried out in respect of child sex

abuse images.

The blocking of child abuse content is less controversial than, for

example, the blocking of online gambling [109] or copyright infringement

[110] websites, because of the more obvious and serious harms involved.

Nevertheless, even the IWF filtering mechanism has been the subject of

intense controversy. [111] Despite the controversy surrounding the

filtering of internet content at ISP level, the European institutions

are now also considering action in this area: the EU Commission has

proposed a Directive [112] to oblige Member States to use filtering

mechanisms against child sex abuse websites on 29. March 2010.

Filtering is both over- and under-inclusive, by mistake filtering

out 'innocent', non-child abuse content (false positives) or

letting through child abuse content (false negatives). [113]

Over-blocking (false positives) has serious negative impacts on the

freedom of speech (i.e. the freedom to impart and receive information).

Because of the false negatives and circumvention, it is also true to say

that blocking is also only partly effective. [114]

While filtering is a complex and multi-faceted issue which cannot

be evaluated in a few paragraphs [115] this (brief) description of the

IWF shows the role of preventative measures in combating obscene content

on the internet.

On the one hand the higher risks of the information society can be

counterbalanced by technological measures reducing the amount of obscene

content available to users. But on the other hand this comes at a price

for the freedom of expression and access to information in the online

world.

5. Conclusion

In a liberal society the continuing expansion of the criminal law

in new areas is disconcerting, as it restricts individual liberty,

restricts the freedom of expression of a majority in order to prevent

deviant and harmful conduct by a minority and leads to greater invasion

of privacy in the investigation of offences (intrusive and covert

surveillance, disclosure of communications data and interception of

content data, search and seizure of private computers etc). This impact

of the criminal law is, of course, deplorable. At the same time it is

one-sided to merely point out the restrictions on civil liberties, but

it is necessary to weigh this loss of liberty against the increased

risks of the information society. This is a difficult and complex

balancing act, but one which is crucial for this debate on the expansion

of the criminal law in respect of illegal online content. Much more work

needs to be done in this respect, but in this Article I can only briefly

outline some of the themes this continuing debate should cover.

One strand of this debate is the protection of human rights under

the European Convention of Human Rights (ECHR) [116], Article 8 (right

to privacy) and Article 10 (freedom of expression) and their

implementation in the UK by the Human Rights Act 1998. The criminalising

of private consumption of pornography for sexual gratification may

engage both rights. [117] However, both Articles 8(2) [118] and 10 (2)

[119] allow for restrictions of these respective rights provided they

are proscribed by law [120] and comply with the proportionality test,

i.e. are necessary for one of the legitimate objectives. [121] Both

rights can be restricted for the purpose of the protection of morals as

well as the rights of others. Hence the ECHR allows restrictions both on

grounds of morality and harm to others. In other words the ECHR does not

limit justification to a harms based argument and includes protection of

morals in its list of possible justification. [122] Furthermore, the

jurisprudence of the European Court of Human Rights gives the

Contracting States a wide margin of discretion in respect of their

criminal law provisions on obscene content. [123] While the European

Court of Human Rights (ECtHR) has indicated in its jurisprudence that

the freedom of expression applies to content that is offending, shocking

and disturbing [124] and that state interference must be limited to

protect the personal autonomy of the individual where an individual

consents to sexual activity [125] the Court has stopped short of

limiting interference to the harm principle (which is not surprising

given the inclusion of public morality as an exception in the ECHR).

[126]

Thus perhaps a more fruitful strand of this debate is the wider

normative question of what the limits of the reach of the criminal law

should be in a modern liberal society. Traditionally standards of

morality prevailing in a given society have been used to justify

particular offences prohibiting the publication or distribution of

obscene materials under the ECHR jurisprudence. But the position taken

here is that vague notions of morality or sensitivity of a majority in

relation to offensive content cannot by itself justify the imposition or

expansion of criminal offences. In this sense the ECHR should be

interpreted afresh to avoid an undue limitation of the freedom of speech

and privacy by a vague principle of morality. [127]

The premise here is that only harm-based argumentation can justify

the extension of the criminal law. Therefore the crucial question is

whether the harms (or risks of harms) stemming from grooming activities,

the possession of extreme pornography or NPPIC justify their prohibition

given the risks posed by the information society.

As has been discussed above, if a picture is simulated or pure

fantasy then no real person has come to harm, in which case the

prohibition can only be justified on the basis that such materials allow

a person with a predisposition to develop and nurture an obsession which

may then induce real abuse in the offline world (or the consumption of

real images, which have already led to harm in the offline world). So

much of this question depends whether one believes in the impact of such

fantasy materials leading viewers to commit crimes causing real harm.

This causal link is by its very nature difficult to establish. Clearly

it would be unethical to carry out empirical research exposing test

persons to such materials in order to see whether it leads to their

committing criminal offences. Conversely the consumption of such

materials by relevant offenders does show a correlation but is not proof

of a causal link.

It is therefore posited that a value judgment is needed on this

question. Given the seriousness of the harm caused by real child sex

abuse and the production of extreme pornography featuring murder or GBH,

coupled with the easy distribution of these materials via the internet,

it may be wise to err on the side of caution. In other words it may be

justified to infer that such a causal link may exist, provided there is

some evidence pointing to this link (such as the police finding the

relevant materials in the possession of persons who have then committed

such acts in the real world). Hence a prohibition of this material may

still be in accordance with the harm principle. Therefore I argue that,

in principle, the criminal prohibition of the possession of extreme

pornography and NPPIC is justified by the harm principle. However it is

equally important that these offences are defined as narrowly and

consistently as possible.

It is here, in the author's opinion that the UK has moved too

far in the direction of uppressing illegal content- in certain respects

the expansion of the criminal law has gone too far and is too uncertain.

As has been discussed above, some aspects cannot be reconciled with the

harm principle. These aspects can be summarised as follows:

The inchoate offences related to grooming are problematic as they

rely heavily on the defendant's intention and may therefore put

adults having innocent interactions with children at risk.

The definition of extreme pornography should be amended to clearly

exclude consensual activities which may lead to minor injuries which do

not amount to GBH and it is at least questionable whether the possession

of depictions of bestiality should be included, as this may not be

justified by the harm principle. Furthermore, the criminalisation of the

possession of other violent, equally harmful materials should at least

be considered.

Both the criminal offences related to extreme pornography and to

NPPIC cause real problems in defining what material is pornographic and

what material is art or content with historic or possibly scientific

interest. The underlying issue here is that this depends on the mind of

the viewer and is therefore inherently subjective. One man's

pornography may be another's form of art without any pornographic

connotations. For many materials this question will not arise, but there

will always be difficult borderline case. The concern here is twofold:

first, since artists will not wish to risk prosecution or being made

subject to a SOPO (and the social stigma attached with this) this

uncertainty suppresses freedom of expression, as personal expression at

the borderline will be suppressed. Secondly this puts

'innocent' citizens at risk, who may create, say, a piece of

art in the firm belief that it is not pornographic, but whose view on

this differs from that of the prosecution and jury. [128] However it is

difficult to see how this delineation problem can be avoided by

redrafting the legislation. As has already been pointed out above the

legislation prohibiting NPPIC has been drafted narrowly by focusing on

certain depictions, rather than just stipulating that the picture must

be obscene.

Finally the legislation on NPPIC raises very difficult issues in

defining who is a child- if the character is mere fantasy (such as an

avatar)--how can the 'age' of that character be defined? A

narrower definition would have been preferable here. This could have

been achieved by limiting the offence to depictions of persons who

clearly show the physical characteristics of a child or by limiting the

offence to realistic depictions of a child (rather than a mere

'impression'). Images other than realistic depictions are less

likely to lead to any of the harms identified above. The proverbial

saying 'crime follows opportunity' also holds true for

technology. The affordability and availability of cameras created the

opportunity to document child sex abuse by photographs and film which

necessitate the legislation in the late 1970s and 1980s. The internet

then enabled the widespread distribution of this nefarious material

across national borders. Convenient and easy access from a person's

private home, coupled with the perceived anonymity of the internet,

lowered inhibitions and led to an increased demand for obscene content.

This increased demand in turn creates a greater risk for children (and

other victims) being abused and placed a demand on legislators 'to

do something about it'. This in turn has resulted in an expansion

of the criminal law in this area: the criminalisation of possession, the

inclusion of pseudo- and non-photographic images (virtual child abuse

images), the measures against extreme pornography and the inchoate

offences of grooming children (for example in chat rooms).

Finally because of the greater risks stemming from harmful content,

more emphasis is placed on preventative action and this Article has

illustrated this preventative principle with the example of the IWF

having implemented notice and take down in respect of hosted illegal

content and filtering as the last resort in respect of child sex abuse

images. The expansion of the criminal law (for example the grooming

offences, the possession offences in respect of extreme pornography and

virtual child abuse images) also has the goal of preventing harm, by

criminalising actions before real world harm occurs.

This expansion of the criminal law is deplorable, but perhaps

unavoidable given the risks posed by the internet. The expansion can be

justified provided it complies with the harm prevention principle in a

proportionate manner. This Article has pointed out where the UK

legislation has overshot that line.

Julia Hornle [1]

[1] Julia Hornle is Senior Lecturer in Internet Law at Queen Mary

University of London. The views expressed in this article are the

author's own and do not reflect those of his employer or the

organisations with which he is connected

[2] B Sandywell 'On the Globalisation of Crime: the Internet

and new Criminality' Chapter 3 in Y Jewkes, M Yar Handbook of

Internet Crime (Willan Publishing Portland 2010) 38-66, 40, 43-44; I

Walden Computer Crimes and Digital Investigations (Oxford University

Press 2007) 58-59, 84-85; U Sieber 'General Report on Internet

Crimes' for the 18th International Congress of the International

Academy of Comparative Law in Washington DC; Sections D and E; more

specifically in the context of child pornography see S OstChild

Pornography and Sexual Grooming (Cambridge University Press 2009) 48-54

and Y Akdeniz Internet Child Pornography and the Law (Ashgate Aldershot

2008) 1 et sequi

[3] This problem has led the English courts to adopt a broader test

on finding jurisdiction in criminal cases- instead of focusing on the

last act to make the offence complete the courts now adopt a more

holistic approach in the form of the 'substantial measure

test'--the courts accept jurisdiction if a substantial measure of

the activities constituting the crime take place in England, see R v

Sheppardand Whittle [2010] EWCA Crim 65 (CA) and J Hornle "The

Internet and Criminal Jurisdiction" 21 (1) Computers & Law

[April-May 2010] 11-12

[4] A discussion of this topic is outside the scope of this

Article, but the interested reader can be referred to S Brenner, B-J

Koops 'Approaches to Cybercrime Jurisdiction' [2004] 4 (1)

Journal of High Technology Law 1-46; I Walden Computer Crimes and

Digital Investigations (Oxford University Press 2007) Chapter 5; J

Hornle Cross-border Online Gambling Law & Policy (Elgar Cheltenham

2010) Chapter 3

[5] See the Consultation on the Criminal Justice and Immigration

Bill, introducing the new offence of possession of extreme pornography,

para 32 http://webarchive.nationalarchives.gov.uk/20100418065544/

http://www.homeoffice.gov.u

k/documents/cons-extreme-porn-3008051/cons-extreme-pornography2835.pdf?

view=Binary

[6] Consultation on the Criminal Justice and Immigration Bill,

introducing the new offence of possession of extreme pornography, para

32 see fn 36 ; see also the Consultation on the Possession of

Non-Photographic Visual Depictions of Child Sex Abuse, pp. 4-6

http://webarchive.nationalarchives.gov.uk/20100418065544/

http://www.homeoffice.gov.u

k/documents/cons-2007-depiction-sex-abuse2835.pdf?view=Binary ;the Times

reports on investigation identifying 200 suspects in 2007, see

http://www.timesonline.co.uk/tol/news/uk/crime/article1951385.ece , see

also Y Akdeniz Internet Child Pornography and the Law (Ashgate Aldershot

2008) 6 and A Murray 'The Reclassification of Extreme Pornographic

Images' (2009) 72 (1) Modern Law Review 73-90, 73

[7] See statistics 1980-2004 in Y Akdeniz Internet Child

Pornography and the Law (Ashgate Aldershot 2008) 24-26

[8] http://www.guardian.co.uk/uk/2009/jul/02/

web-child-abuse-inquiry-challenge and had only looked at legal adult

pornography, see J Rowbottom 'Obscenity Laws and the Internet:

Targeting the Supply and Demand' [2006] Criminal Law Review 97-109,

104

[9] 782 of the publication/making offence and 185 of the possession

offence, see http://www.guardian.co.uk/society/2010/jun/27/

bulger-killer-charge-crime, more statistics on child sex abuse images on

the internet can be found at

http://www.icmec.org/missingkids/servlet/PageServlet? LanguageCountry=en

X1&PageId=1742

[10] http://en.wikipedia.org/wiki/Graham Coutts

[11] More detailed arguments justifying or discrediting inchoate

criminality can be found in A Ashworth Principles of Criminal Law (6 th

ed Oxford University Press 2009) 468

[12] See some of the educational materials produced by CEOP

http://www.ceop.gov.uk and S Ost Child Pornography and Sexual Grooming

(Cambridge University Press 2009) 49

[13] The proposed Directive on combating the sexual abuse, sexual

exploitation of children and child pornography COM (2010)94 final

Article 6 also contains a grooming offence

[14] Section 14 (1): 'A person commits an offence if (a) he

intentionally arranges of facilitates something that he intends to do,

intends another person to do or believes another person to do, in any

part of the world and (b) doing it will involve the commission of an

offence under sections 9-13' (child sex offences).

[15] A child is defined for the purposes of this provision as a

person under 16 and the defendant must not reasonably believe that the

person is 16 or older, s. 15 (1) (c) and (d)

[16] Section 15 (1) (a)

[17] HG v The Queen [2010] EWCA Crim 1693 (CA) Para 16; see also S

Ost Chid Pornography and Sexual Grooming (Cambridge University Press

2009) 72

[18] S Ost Child Pornography and Sexual Grooming (Cambridge

University Press 2009) 72

[19] Section 15 (1) (b)

[20] L Edwards, J Rauhofer and Majid Yar 'Recent Developments

in UK Cybercrime Law' Chapter 20 in Y Jewkes, M Yar Handbook of

Internet Crime (Willan Publishing Portland 2010) 413-436, 420

[21] Section 15 (4); however an indeterminate sentence may be given

for public protection reasons see Attorney General's Reference (No

3 of2006) [2006] EWCA Crim 695

[22] S Ost Child Pornography and Sexual Grooming (Cambridge

University Press 2009) 73

[23] [2009] EWCA Crim 1472; see also R v Jordan [2006] EWCA Crim

3311 where the defendant was convicted of a Section 14 offence (not an

attempt but the full offence) on almost identical facts

[24] Para 12

[25] R v S [2008] 2 Cr App R 91 (CA), see also R v Barnett [2008] 1

Cr App R 61 (CA) where the defendant 'groomed' an

investigative journalist, believing him to be a 12 year old child- he

was sentenced to 18 months' imprisonment (reduced from 30 months on

appeal).

[26] Section 104 (1) 'for the purpose of protecting the public

or any particular members of the public from serious sexual harm from

the defendant'

[27] Sections 106 (6) and (7), see also I Walden Computer Crimes

and Digital Investigations (Oxford University Press 2007) 148

[28] R v Robson [2009] EWCA Crim 1472 (CA) Para 16

[29] L Edwards, J Rauhofer and Majid Yar 'Recent Developments

in UK Cybercrime Law' Chapter 20 in Y Jewkes, M Yar Handbook of

Internet Crime (Willan Publishing Portland 2010) 413-436, 414; J

Rowbottom 'Obscenity Laws and the Internet: Targeting the Supply

and Demand' [2006] Criminal Law Review 97-109, 98

[30] In the sense that it requires the search of a suspect's

private space and seizure of a private computer, intrusive and possibly

covert investigation techniques

[31] The English courts, as we have seen above under 3., however

have interpreted the downloading of child abuse images as

'making' such images, so that the distinction between mere

passive possession and active production of such images has been blurred

in any event. So even if possession of such material was not

criminalised, the downloading would still be punishable as an act of

'making'.

[32] See also J Rowbottom 'Obscenity Laws and the Internet:

Targeting the Supply and Demand' [2006] Criminal Law Review 97-109,

104

[33] Section 2

[34] Section 63 (1)

[35] Consultation on the Criminal Justice and Immigration Bill,

introducing the new offence of possession of extreme pornography, para

32 see fn 36

[36] http://www.dailymail.co.uk/news/article-511969/

Snuff-movies-website-shut-MailSunday-probe.html

[37] http://www.guardian.co.uk/commentisfree/2008/nov/27/

response-coutts-crimepornography-murder

[38] But see fn 60

[39] I Walden Computer Crimes and Digital Investigations (Oxford

University Press 2007) 137

[40] Section 63 (2)

[41] Section 63 (3) and it is this criterion which would

distinguish it from art

[42] Section 63 (4) and (5)

[43] Section 63 (6) (b): 'grossly offensive, disgusting or

otherwise of an obscene character'

[44] Section 63 (7)

[45] Section 64 (6), similar provisions are contained in the

Coroners and Justice Act 2009 in respect of non-photographic

pornographic images of children in Section 63

[46] This may be a defence for a hosting provider

[47] The same defences exist against a charge of possession

non-photographic pornographic images of children in section 64 of the

Coroners and Justice Act 2009

[48] Section 65 (2)

[49] This would include killing or grievous bodily harm (GBH). But

it would probably also include actual bodily harm (ABH), such as the

harm inflicted in R v Brown [1994] 1 AC 212 (HL), where the House of

Lords held that a person cannot consent to the infliction of ABH in the

context of sado-masochistic practices between men in private. This would

also include sex with a person below the age of consent.

[50] Section 65 (3)

[51] Section 66 (2) (a)

[52] In the sense of 'serious injury to a person's anus,

breasts or genitals'

[53] Section 67 (2)

[54] Section 67 (3)

[55] See also the discussion in relation to the new offence

criminalising non-photographic pornographic images of children S Ost

'Criminalising Fabricated Images of Child Pornography: a Matter of

Harm or Morality?' (June 2010) 30 (2) Legal Studies 230-256,

240-245, S Ost Child Pornography and Sexual Grooming (Cambridge

University Press 2009) 103 and C Nowlin 'The Protection of Morals

Under the European Convention for the Protection of Human Rights and

Fundamental Freedoms' (2002) 24 (1) Human Rights Quarterly 264-286,

265, 271

[56] JS Mill 'On Liberty' in JS Mill Utilitarianism, On

Liberty, Considerations on Representative Government (Orion London 1993)

[57] HLA Hart Law, Liberty and Morality (Oxford University Press

1963)

[58] J Feinberg The Moral Limits of the Criminal Law: Harm to

Others (Oxford University Press 1984)

[59] Report of the Committee on Homosexual Offences and

Prostitution 1957 Cmd 247 paras 13. and 14., stating that the law's

function is to preserve public order and decency and to protect citizens

from 'what is offensive and injurious', but that the function

of the law is not to intervene in the private lives of citizens in order

to 'enforce any particular pattern of behaviour'. The Report

argues that morality based on religion and culture is wider in scope

than the criminal law and hence a distinction has to be made between

morality and the law.

[60] JS Mill fn 84 p.78

[61] HLA Hart Law, Liberty and Morality (Oxford University Press

1963) 45

[62] Ibid 46

[63] Ibid 46-47

[64] Ibid 47

[65] R v Butler [1992] DLR (4th) 449 mentioned by C Nowlin

'The Protection of Morals Under the European Convention for the

Protection of Human Rights and Fundamental Freedoms' (2002) 24 (1)

Human Rights Quarterly 264-286, 266

[66] R v Butler [1992] DLR (4th) 449, 477 (Justice Sopinka)

[67] at 476

[68] At 467

[69] Feinberg fn 91 p. 11

[70] Feinberg fn 92 p. 34

[71] Feinberg fn 92 p. 36

[72] Ibid

[73] One of the accusations against the Bill was that it was not

based on scientific research, see for example Memorandum by Dr Clarissa

Smith et al http://www.publications.parliament.uk/pa/cm200607/cmpublic/criminal/ memos/ucm34102.htm and Memorandum by Backlash

http://www.publications.parliament.uk/pa/cm200607/cmpublic/criminal/

memos/ucm40502.htm See also the arguments made by Feinberg fn 92 236-240

[74] A Murray 'The Reclassification of Extreme Pornographic

Images' (2009) 72 (1) Modern Law Review 73-90, 77-78, 81

[75] See for example the comment in the Guardian

http://www.guardian.co.uk/commentisfree/2008/nov/27/

response-coutts-crimepornography-murder

[76] See below under 7.

[77] Fn 104

[78] Laskey v UK (1997) 24 EHRR 39; see further the discussion in A

Ashworth Principles of Criminal Law (6th ed Oxford University Press

2009) 311-314, see also the discussion below under 7.

[79] A Murray 'The Reclassification of Extreme Pornographic

Images' (2009) 72 (1) Modern Law Review 73-90, 87-88

[80] See also S Ost Child Pornography and Sexual Grooming

(Cambridge University Press 2009) 125; Y Akdeniz Internet Child

Pornography and the Law (Ashgate Aldershot 2008) 22-23

[81] For a more detailed discussion see S Ost 'Criminalising

Fabricated Images of Child Pornography: a Matter of Harm or

Morality?' (June 2010) 30 (2) Legal Studies 230-256, 240-245; see

also Consultation on the Possession of Non-Photographic Visual

Depictions of Child Sex Abuse, pp. 4-6, see fn 37

[82] The same issue of delineation may arise with historical

objects, which are of interest because of their historical context, but

are also pornographic (at least in their original use)- an example for

this would be the Warren Cup (Roman) which was featured in Radio

4's History of the World in 100 Objects depicting sexual activities

between men and boys in Greek times

[83] Section 7 (7) and (8) of the Protection of Children Act 1978

[84] Section 7 (4A) Protection of Children Act 1978

[85] Section 62 (1)

[86] Section 62 (2) and (3): 'it must reasonably be assumed to

have been produced solely or principally for the purpose of sexual

arousal'

[87] Section 62 (7): intercourse, oral sex, anal or vaginal

penetration, masturbation, bestiality involving or in the presence of a

child

[88] Section 65 (6)

[89] Section 65 (5)

[90] See text fn 71

[91] Section 66 (2) (b)

[92] See http://www.publications.parliament.uk/pa/cm200809/cmpublic/ coroners/memos/ucm1102.htm

[93] In the US the Supreme Court has held in 2002 that rules

criminalising virtual child pornography were an unjustified restriction

of free speech: Ashcroft v Free Speech Coalition 534 US 234, 122 S Ct

1389

[94] On the importance of crime prevention and involvement of all

stakeholders see N Kozlovski 'Designing Accountable Online

Policing' in J Balkin et al Cybercrime (New York University Press

2007) 107-134, 109-114; Y Akdeniz Internet Child Pornography and the Law

(Ashgate Aldershot 2008) 225 et sequi

[95] http://www.ceop.gov.uk

[96] In the UK a draft law (Bill) was introduced before Parliament

on 21. July 2010 to impose penalties on credit and debit card providers

for facilitating the downloading of child sex abuse images from the

internet. In particular, if this Bill becomes law it would oblige

issuers of pre-paid cards to register a person's name and address

and take proof of id before issuing a pre-paid card, Credit Regulation

(Child Pornography) Bill, Bill No 61 Session 2010/2011

[97] Section 104 Sexual Offences Act 2003

[98] R v Mortimer (Jason Christopher) [2010] EWCA Crim 1303

[99] Schedule 3

[100] http://www.iwf.org.uk/public/page.148.437.htm

[101] http://www.iwf.org.uk/public/page.148.htm

[102] http://www.iwf.org.uk/public/page.148.htm

[103] http://www.iwf.org.uk/public/page.148.htm

[104] http://www.guardian.co.uk/technology/2004/jun/06/

childrensservices.childprotection or

http://news.bbc.co.uk/1/hi/technology/4689386.stm

[105] http://www.iwf.org.uk/public/page.148.htm

[106] http://www.iwf.org.uk/public/page.148.htm

[107] The IWF has a list of about 100 members, ranging from ISPs,

search engines, social networking sites, media companies, mobile phone

companies, communication companies, internet security companies, payment

providers etc http://www.iwf.org.uk/funding/page.64.htm

[108] https://www.inhope.org

[109] Italy has attempted to block Maltese gambling websites 2006

Financial Law (Statute 266/2005) Art 1, Paras 535-538,

http://www.edri.org/edrigram/ number4.12/italybetting

[110] Some courts in Europe have ordered a blocking of Pirate Bay

IFPI Denmark v DMT2 Bailiff's Court of Frederiksberg (Copenhagen,

Denmark), Decision of 5. February 2008, FS 14324/2007

http://www.computerworld.dk/modules/davinci/getfile.php?

id=18886&attachment ; see also

http://www.pcworld.com/businesscenter/article/154854/pirate bay still

blocked in denm ark.html ; the Italian Tribunale di Bergamo, Ordinanza

of 1. August 2008 N 3277/08 available from

http://www.altalex.com/index.php?idnot=42855&idstr=20; the

injunction was later lifted see http://merlin.obs.coe.int/iris/2008/10/

article21.en.html

[111] See for example the blocking of the Wikipedia entry on the

Scorpion's 1976 album 'Virgin Killer' which featured a

naked girl covered by broken glass

http://www.guardian.co.uk/commentisfree/2008/dec/09/scorpions-virgin-killer censorship ; http://www.openrightsgroup.org/2008/12/iwf-censors-wikipedia-chaosensues/ This caused the whole of Wikipedia to be inaccessible

from the UK for a short while.

[112] Draft Directive on Combating Sexual Abuse, Sexual

Exploitation of Children and Child Pornography COM (2010) 094, available

from http://www.europarl.europa.eu/oeil/file.jsp?id=5849492 This will

replace Framework Decision 2004/68/JHA

[113] I Walden Computer Crimes and Digital Investigations (Oxford

University Press 2007) 224; see also the Opinion by Justice Breyer in

United States v American Library Association 593 U.S. 194 (2003) 219:

the speech harm is largely due to overblocking; see also R Deibert, N

Villeneuve 'Firewalls and Power: an Overview of Global State

Censorship of the Internet' Chapter 9 in M Klang, A Murray Human

Rights in the Digital Age (Glasshouse Press London 2005) 111-124, 113;

see also OpenNet Initiative http://opennet.net/about-filtering

[114] W Stol, H Kaspersen (and others) 'Governmental Filtering

of Websites: the Dutch Case' 25(3) Computer Law and Security Review

251-262, 254-255; see also U Sieber, M Nolde 'Sperrverfugungen im

Internet' Research Report 2008,

http://www.kjmonline.de/public/kjm/downloads/juristisches%20

Gutachten%20Sperrverfuegungen.pdf

[115] For further discussion see W Stol, H Kaspersen (and others)

'Governmental Filtering of Websites: the Dutch Case' 25(3)

Computer Law and Security Review 251-262; R Deibert, N Villeneuve

'Firewalls and Power: an Overview of Global State Censorship of the

Internet' Chapter 9 in M Klang, A Murray Human Rights in the

Digital Age (Glasshouse Press London 2005) 111-124; B Esler

'Filtering, Blocking and Rating: Chaperones or Censorship?'

Chapter 8 in M Klang, A Murray Human Rights in the Digital Age

(Glasshouse Press London 2005) 99-110; OpenNet Initiative http:

//opennet.net/ research

[116] Council of Europe Convention for the Protection of Human

Rights and Fundamental Freedoms (ECHR) of 4. November 1950, signed at

Rome TS 71 (1953) Cmd 8969; ETS No5 1950

[117] Other rights engaged are Article 7 (prohibition on

retroactive criminal laws- certainty in the definition of criminal

offences) or Article 1 of the First Protocol (peaceful enjoyment of

possessions). For a description of the scope of the meaning of

'private life' in Article 8 and the view that it comprises

aspects of a person's sexual life see C Ovey, R White Jacobs &

White European Convention on Human Rights (3 rd edition Oxford

University Press 2002) 221

[118] "There shall be no interference by a public authority

with the exercise of this right except such as is in accordance with the

law and is necessary in a democratic society in the interests of

national security, public safety or the economic well-being of the

country, for the prevention of disorder or crime, for the protection of

health or morals, or for the protection of the rights and freedoms of

others."

[119] "The exercise of these freedoms, since it carries with

it duties and responsibilities, may be subject to such formalities,

conditions, restrictions or penalties as are prescribed by law and are

necessary in a democratic society, in the interests of national

security, territorial integrity or public safety, for the prevention of

disorder or crime, for the protection of health or morals, for the

protection of the reputation or the rights of others, for preventing the

disclosure of information received in confidence, or for maintaining the

authority and impartiality of the judiciary."

[120] The ECtHR stated in Muller v Switzerland [1991] 13 EHRR 212

in Para 19: 'The need to avoid excessive rigidity and to keep pace

with changing circumstances means that many laws are inevitably couched

in terms which, to a greater or lesser extent, are vague. Criminal law

provisions on obscenity fall within this category.'

[121] See C Ovey, R White Jacobs & White European Convention on

Human Rights (3rd edition Oxford University Press 2002) 201

[122] See also C Nowlin 'The Protection of Morals Under the

European Convention for the Protection of Human Rights and Fundamental

Freedoms' (2002) 24 (1) Human Rights Quarterly 264-286, 264, 279

[123] Muller v Switzerland [1991] 13 EHRR 212 in Paras 32, 35

(depictions of sodomy, fellatio, bestiality in paintings in a public

exhibition); Handyside v UK[1979-80] 1 EHRR 737 Paras 48, 52, 59; Laskey

v UK (1997) 24 EHRR 39, para 41 (sado-masochistic practices between

consulting adults, the criminalisation of which was found to be

justified under the protection of health exception- this case was based

on the R v Brown case before the House of Lords); see also J Rowbottom

'Obscenity Laws and the Internet: Targeting the Supply and

Demand' [2006] Criminal Law Review 97-109, 107-108

[124] Laskey v UK(1997) 24 EHRR 39, para 56 (Commission), Handyside

v UK [1979-80] 1 EHRR 737 Para 49

[125] Laskey v UK(1997) 24 EHRR 39, paras 57-60 (Commission), para

44 (Court)

[126] See fn 156; the only exception being ADT v UK Judgment of 31.

July 2000 (2001) 31 EHRR 33 where the Court held that the prosecution

for gross indecency of a male homosexual for video-taping homosexual

activities for private use was an unjustified infringement of Article 8

because of the 'absence of any public health considerations and the

purely private nature of the behaviour', para. 38

[127] C Nowlin 'The Protection of Morals Under the European

Convention for the Protection of Human Rights and Fundamental

Freedoms' (2002) 24 (1) Human Rights Quarterly 264-286, 265

[128] The Director of Public Prosecution must authorise any

prosecution of NPPIC

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