by Dana Irina Cojocarasu
“What is that Internet that everyone keeps talking about?” I guess even a five years old could answer that question, with his own words, of course. If the kid is funny enough, he might even give you a puzzled look: “is he from Mars, or what?”
The Internet is indeed for everybody. The revolution caused to our lives can easily be compared with the one brought, a lifetime ago, by the invention of the wheel. More than ever before, we’ve come to depend on technology and the answers it provides. Can we really tell who’s serving whom?
As the most commonly used communication environment, the Internet couldn’t escape the legal issues that all the others had to face. Legal systems all over the world had to introduce special provisions, in order to deal with the new “e-criminals”. Especially in the 1980s, a broad wave of program piracy, cash dispenser manipulations, telecommunication abuses(1), revealed the fact that, while it makes us more efficient, the information society makes us more vulnerable, as well. Most countries have, by now, already established a set of legal measures and technical solutions in order to deal with the criminal acts directed against various computer programs, systems, or data.
We are facing a new challenge nowadays. The Internet is a communication environment that cannot be “owned” and regulated at a national level due to its special features; still, we have to reinforce in the “virtual world” the same values that govern our material lives. After all, the Internet is designed by people, and used by people, as well. We are not allowed to modify neither our moral values, nor the fundamental rights that are the pillars in any democratic society.
Whether we like it or not, the pornographic industry has always been one of the most profitable. But, while admit that any adult has the right to express his/her sexuality, and adopt the kind of behavior that best suits his/her personality, we can’t use the same judgment where minors are concerned . In most cases, their consent is not a valid one, as they lack the experience and are easily influenced.
On the Internet, the pornographic content is available in different formats, such as images, films, audio recordings, texts. Most of it comes from the web pages. Through the Internet, one can anonymously talk (in private, or in larger groups) about sexual fantasies and wishes, or arrange meetings for the same purpose. File exchanges are ready in just a few seconds.
Before we start to analyze the possible solutions in dealing with the pornographic content found on the Internet, we should say that most countries admitted the distinction between the materials that are “harmful to minors” (especially the pornographic materials that involve adults as “actors”) and the materials that are simply illegal, for minors and adults as well (that show minors having a sexually explicit conduct) . Unless we admit this distinction , we risk to transform the entire network in a children’ play-ground. In trying to regulate the Internet we are not allowed to hinder the freedom of _expression and restrict the availability of a certain content that we admit in the material world.
The pornographic materials involving adults aren’t generally considered illegal, unless they are obscene. Because minors can access this kind of material, the main concern is to restrict their access. How exactly can this be done, is a matter for a distinct debate(2).
1. What is child pornography?
In accordance with their legal background and the social values promoted, states have considered different definitions on child pornography . The main criteria for those differences are :
- The definition of the term “child”;
- The definition of “pornography” ;
- The actions that are considered to be illegal ;
We will analyze each of the three issues.
· The definition of the term “child”
The age of the person that is represented in the pornographic material is the key condition in considering that a certain form of _expression is legal, or not. The way that the age limit is determined is one of the most controversial issues.
Most of the European countries have agreed that any representation of a minor under the age of 18 involved in a sexually explicit conduct should be banned as child pornography. Albania, Armenia, Austria, Belgium, Bulgaria, Croatia, Cyprus, Estonia, Finland, France, Germany, Greece, Hungary, Italy, Moldova, Romania the Netherlands, Norway, Poland, Portugal, Spain, Sweden, Switzerland, "the Former Yugoslav Republic of Macedonia", Ukraine and the United Kingdom signed in Budapest, on November 23rd 2001 the Convention on Cyber-crime. While it admits the 18 year old limit, the Convention gives a Party the right to require a lower age-limit, which shall be not less than 16 years (Title 3, article 9, paragraph 3).
On the other hand, Canada and United States, that signed the same document, agree on the same age limit, although according to their laws, a person becomes a “major” at the age of 21 .
The document mentioned above takes into account the legal age of a person, and not the biological one. This is one of the reasons for which Canada has introduced in its Criminal Code (article 163.1 , paragraph 5) a defense against child pornography charges, for the accused that “took all reasonable steps to ascertain the age of that person” and also “took all reasonable steps to ensure that, where the person was eighteen years of age or more, the representation did not depict that person as being under the age of eighteen years”.
Norway(3) is one country that considered the age limit in a different manner. It considers the sexual maturity of a child. In theory, child pornography represents a child under the age of 16, but if the process of sexual maturity is obviously over, he/she will not be considered a child according to the Penal Code paragraph 204. Assault or exploitation of children under the age of consent, and particularly under the age of 14, could be pursued under other articles in the Penal Code. Whether a child has reached or not the level of sexual maturity, it is a matter for the Court to establish, considering the data provided in each case.
Neither of the two age-limit criteria could be admitted without reserve. While the first allows a person to be tried for distribution of child pornography when he didn’t know or didn’t care about the age of the person that looked “young but obviously mature” , the second allows the personal believes of the judge to determine whether a child “looks like an adult or not” . We are so different from one other that is impossible to enforce some fixed criteria to determine the sexual maturity from our appearance.
I consider that the legal age remains the best criteria possible, but only if we admit the Court’s right to decide whether or not the accused took the necessary measures, or could determine, considering its personality, the age of the person represented.
· The definition of pornography
First of all, the states had to decide upon including in the definition of child pornography only visual representations, or the term should include both visual and written materials.
The Convention on Cyber-crime (Budapest, 2001) stated that “child pornography” shall include pornographic material that visually depicts:
a. a minor engaged in sexually explicit conduct;
b. a person appearing to be a minor engaged in sexually explicit conduct;
c. realistic images representing a minor engaged in sexually explicit conduct(article 9, paragraph 2), allowing at the same time that “Each Party may reserve the right not to apply, in whole or in part, paragraph and 2(b) and 2(c)”.
On the other hand, Canada’s Criminal Code stated that :
“In this section, "child pornography" means
(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or
(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; or
(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.“
Some of the terms used here need to be analyzed further .
First of all, the term “sexually explicit conduct” has been defined as including:
a. Genital –genital, oral –genital, anal – genital sexual acts , among minors or (an) adult(s) and (a)minor(s)
a. Violence in a sexual context;
c. Sadomasochistic abuse in any sexual context;
d. lewd or public exhibition of a minor’s genital organs ;
This definition refers to acts at the extreme end of the spectrum of sexual activity -- acts involving nudity or intimate sexual activity represented in a graphic and unambiguous fashion , so kissing, or non sexual nudity are not considered “sexually explicit conduct”.
Secondly, the "dominant characteristic" of a visual representation should be the depiction of the child's sexual organ or anal region in a manner that is reasonably perceived as intended to cause sexual stimulation to some viewers. Innocent photographs of a baby in the bath and other representations of non-sexual nudity are not covered by the offence.
The term “visual representation” shall include not only actual photographs, and video recordings, but also films that haven’t already been processed and photographs in electronic data format, found on a hard-disk, or on a floppy disk , even though they cannot be “visualized” at “first sight”.
As for written material or visual representations that advocate or counsel sexual activity with a person under the age of 18 years that would be an offence under Canada’s Criminal Code, the requirement that the material "advocates" or "counsels" has been interpreted as, actively inducing or encouraging the described offences with children(4).
Several defenses have been created as to guarantee the freedom of speech and the individual’s rights . It shall not be considered “child pornography” a material that has “artistic merit ”, as established objectively by the Court.
Section 163.1(6) creates a further defense for material that serves an "educational, scientific or medical purpose". This refers to the purpose the material, viewed objectively, may serve, not the purpose for which the possessor actually holds it. Finally, the Parliament of Canada has made available a "public good" defense.
If we take another look at the two definitions above, we shall notice that both of them refer to the situation when “a person appears to be ( is depicted as being)” a minor involved in a sexually explicit conduct. The two texts state that is illegal not only to present actual minors involved in a sexual activity, but also to suggest that minors have that kind of behavior . For example, if the “actors” in the visual representation wear dippers or other child accessories, or are portrayed in an environment that is usually associated with children, their attitudes or their activities.
A similar provision in the United States’ “Child Pornography Protection Act”(5) of 1996 has been considered not justifiable in a free and democratic society because the terms “appear to be” and “is depicted as being” are too broad and too vague to be included in a legal text, that had to determine exactly the kind of illegal behavior . Even if the defendant proved that no harm had been caused to minors in the process of making that representations, as long as the jury would consider that the “actors” looked like some kids, the verdict would be “guilty”.
Though I admit the provision in debate poses a limitation on the individual’s freedom of speech, I consider that it is a justifiable one, taking into account the kind of behavior we protect and the impact that it has on a viewer. No-matter how open-minded we would be, society nowadays cannot consider as moral to suggest that it is OK for small kids to be involved in a sexually explicit behavior and to arouse the imagination of a certain category of individuals that find pleasure in sexually molesting a child. But, of course this is a personal opinion.
Another controversial issue in the definition of the term “child pornography” is the phrase “realistic images representing a minor engaged in sexually explicit conduct”. Commonly known as “pseudo- pornography” as it didn’t involve real children, it was often considered “an illusion”(6).
In fact the term “pseudo” suggests an appearance, created with the help of a computer program. Such a program (for example ‘Acrobat Photoshop”) , able to cut, transform and modify real images, can transform innocent pictures of children into fictional images that portray them as being involved in a sexually explicit conduct.
The term was used for the first time(7) in the Great Britain’ s “Criminal Justice and Public Order Act”, in 1994. From that point, the concept was introduced in most of the child pornography laws, and raised several constitutional debates.
The technical impossibility to distinguish the real pictures from the fictional ones was the main argument in favor of the pseudo –pornography regulations(8). Not to incriminate this kind of behavior would be a loophole that child-pornographers could use to avoid conviction .
Another argument took into account the goal of any child-pornography representation, that is to cause sexual pleasure to a certain category of viewers. It won’t matter to them how the material was created, if they can produce the effect they want. As we will explore a little later in that article, “child-pornography” is incriminated mainly as a conduct against the moral values of the society, and not as an sexual assault on a minor. The fact that no minor has been hurt in the process of making it, is not a valid point. Child pornography is also forbidden because in many cases pedophiles and child molesters use them to make the idea acceptable to their victims (“look, this is something usual”) . From this point of view, it makes no difference how the pictures were made.
The opposing arguments consider that it's the prosecution's burden to prove an illegal act has taken place. Legality or illegality has to be proven beyond a reasonable doubt, so it isn’t enough to say that a certain behavior leads in most cases to a certain unwanted result.
As they are in fact adult pornography, their legality should be considered in accordance with the rules that apply to adults. Adult pornography cannot be banned unless it is obscene, and both Great Britain and the United States have established several criteria to determine the degree of obscenity .
According to the Great Britain’s Obscene Publication Act (1959), “an article shall be deemed to be obscene if its effect or the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.”
The American jurisprudence established the “three steps obscenity test”. A material will be considered obscene, considering the children’s interests if:
· the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;
· depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and
· taken as a whole, lacks serious literary, artistic, political, or scientific value for minors .(9)
As already mentioned, the United States Supreme Court has decided on April 16th 2002 that the texts in the “Child Pornography Protection Act”(1996) that forbade “any visual depiction, including any photograph, film, video, picture, or computer-generated image or picture ” that “is, or appears to be, of a minor engaging in sexually explicit conduct( Â§2256(8)(B) )”(10) cannot be accepted.
On the other hand Canada has set precedents in incriminating pseudo-pornographers, in 1995 J. Pecciarich being the first Canadian sentenced for producing child pornography .
· The actions that are considered to be illegal
Again, we have the two models, the European, and the Canadian one.
The Convention on Cyber-Crime (Budapest, 2001) stated that “each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right, the following conduct:
a. producing child pornography for the purpose of its distribution through a computer system;
b. offering or making available child pornography through a computer system;
c. distributing or transmitting child pornography through a computer system;
d. procuring child pornography through a computer system for oneself or for another;
e. possessing child pornography in a computer system or on a computer-data storage medium.
On the other hand, the Canadian Criminal Code considers that :
“(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.
(3) Every person who imports, distributes, sells or possesses for the purpose of distribution or sale any child pornography is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.
(4) Every person who possesses any child pornography is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction”
Comparing the two models, we notice that the main activities related to the representation of minors involved in a sexually explicit conduct are similar. Both of them incriminate the simple possession of child pornography ( when the possessor does not intend to distribute them), that is debatable considering the individual’s freedoms.
To produce for the purpose of distribution means to make having in mind the goal of distribution. From this point of view, it is important that the author thought about distributing them, and not that the actual distribution took place. Because distribution is separately incriminated, it’ s lex fori that will decide whether the accused will have to answer to for both of them, or simply for one of them ( and the judge will consider the two acts when he establishes the sentence to be executed)
“Producing” includes both the assault on minors ( in that case there will be two charges, one for child pornography, and one for child assault, as determined by lex fori) , and the pseudo-pornography making.
To offer, means to give, so it doesn’t matter that the person who offered was asked to do that, or he himself had the initiative . Offering may include or not a price; it depends if lex fori considers the act of selling, import, export, distribution to be separate or not. The distinction is more of an academic one, rather than a practical one, as long as they are liable of the same punishment. Because the Budapest convention deals separately with “offering” and “procuring”, we may assume that the person that offers already has the materials(otherwise his action would be that of procuring”
To make available means on one hand, to allow access, and on the other, to offer information about a certain location (or about the necessary means to access a certain content) . According to lex fori , a state can accuse an Internet service provider of child pornography if he had knowledge about the content, and didn’t ban it.
Procuring child pornography through a computer system for oneself or for another means to search, to find, indicating active involvement of the accused, and not simply to run into a certain content. It makes no difference whether the materials are for oneself, or for another person . It is interesting to notice that the law does not punish the person that is asking for the materials, but the one that looks for them. The law doesn’t distinct whether the person that searched the materials knew or not how they would be used.
The possession of child pornography is one of the most “delicate” issue in incriminating “child pornography”. On the one hand the re is the danger of misusing them in corrupting innocent children. On the other, there is the adult’s personal right to privacy, knowing that he has no intention to public, distribute, sell them. Two values that are opposite but demand equal protection .
This is one reason for which the Budapest Convention gave a Party the right not to apply, in whole, or in part this provision .
On January 2001, The Supreme Court of Canada has stated that the provisions in 163.1(4) are constitutional and justifiable. In R vs. Sharpe, both the trial court and The Court of Appeal of British Columbia ruled in favor of the accused(11), stating that the same article is not justifiable in a free and democratic society , so in appeal , the Supreme Court gave a final decision in which possessing child pornography was forbidden.
It is interesting to see all the arguments that were presented, to realize that it was a difficult decision.
Section 1 in the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. So, the question that the Court had to answer was: Is that limitation justifiable in a free and democratic society?
Yes!, because child pornography, as defined in section 163.1 is a danger not only for the victims, but for society as a whole. That danger exists whether or not the materials are disseminated. The simple fact of their existence acts against the dignity and moral integrity of any child.
Although it cannot be measured neither in a traditional manner, nor by any kind of survey, the attitudinal harm inherent in child pornography can be inferred from degrading or dehumanizing representations or treatment. _Expression that degrades or dehumanizes is harmful in itself, as all members of society suffer when harmful attitudes are reinforced.
The possibility that pornographic representations may be disseminated creates a heightened risk of attitudinal harm. Child pornography is harmful whether it involves real children in its production or whether it is a product of the imagination. Section 163.1 was enacted to protect children, one of the most vulnerable groups in society. It is based on the clear evidence of direct harm caused by child pornography, as well as Parliament's reasoned apprehension that child pornography also causes attitudinal harm.
On the other hand, paedophiles use child pornography for seducing children and for grooming them to commit sexual acts, and their behavior cannot be considered distribution, or another action that is prohibited by the law, so their behavior could go unpunished.
Child pornography possession may enforce on the long run the erroneous belief that sexual activity with children is acceptable.
To sum up, in enacting s. 163.1(4), was taken into consideration not only the harm that flows from the use of children in pornography, but also the harm that flows from the very existence of images and words which degrade and dehumanize children and to send the message that children are not appropriate sexual partners. As a consequence, we should focus on the message of the representation, and not on the manner on which it was made, or the number of persons that viewed or read the materials.
The benefits of the legislation far outweigh any deleterious effects on the right to freedom of _expression and the interests of privacy.
No!, because an individual’s personal belongings, such as books, diaries, photographs are a part of his/her being, an _expression of her individuality and personal interests. The freedom of _expression protects not only the content of _expression, but also the right to a personal identity and privacy. Especially the individual’s right to privacy has turned into a fundamental value, now that we have the technical methods of trespassing it. The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.
Focusing on the negative effects in incriminating the simple possession of child pornography, some of the judges considered the prohibition was not justifiable.
“Justifications for abrogating the freedom of _expression are less easily envisioned when expressive activity is not intended to be public, in large part because the harms which might arise from the dissemination of meaning are usually minimized when communication takes place in private, but perhaps also because the freedoms of conscience, thought and belief are particularly engaged in a private setting”( judge Dickson C.J.C) . Moreover, the prohibition extends to all persons including those who make no harmful use of pornography. They may be collectors of pornography, whether out of prurient interest or simply out of curiosity, but with no harmful intent. The prohibition also includes pedophiles who, instead of preying on children, use pornography for very private purposes. Sexually explicit pornography can also be used to relieve pent-up sexual tension of otherwise potential aggressors
In comparing salutary effects and the detrimental effects in incriminating the simple possession of child pornography, no limitation can be imposed on the individual rights unless the benefits of that limitation have been proven beyond a reasonable doubt. The law has already banned the behaviors that lead, beyond any reasonable doubt , to a harm to children, arising from pornography, and identified at the same time its main sources. Making, printing, publishing, importing, distribution, selling or possessing of child pornography for the purpose of publication, distribution or sale, are made criminal.
Now, here is a subject for the reader to meditate upon.
Let’s assume that two teenagers of 17 years old record themselves with a web – cam, and their conduct can easily be interpreted as “sexually explicit”. Each of them keeps a copy of the record. Is each of them an author for “possession of child pornography” for the record that involves the other? The law doesn’t say anything about the existence of an abuse, and criminal charges can be brought against a 17 years old .
2. Why should it be considered illegal?
No-mater how lex fori chooses to incriminate child pornography, written or visual materials portraying children involved in a sexual explicit conduct is harmful both for children, and the society as a whole.
First of all , child pornography is, in most cases a record of a sexual abuse on a real child. When a child pornographer chooses to manufacture electronically his representations, the harm cause to the child represented in the picture is a moral one, as his appearance, taken from a harmless picture, was used to create pornography, and his physical features were altered.
Secondly, some pedophiles show children sexually explicit depictions of children with adults(12), or adults with other adults, in order to lower inhibitions and to make the depicted conduct appear to be normal. Pornography excites some child molesters to commit offences.
Thirdly, as stated by Dr. P.I. Collins, an expert witness in R vs. Sharpe, child pornography augments or reinforces the "cognitive distortions" of pedophiles. Dr. Collins explained that cognitive distortions are erroneous beliefs by which pedophiles justify their aberrant behavior. Examples of cognitive distortions are that child-adult sex is natural and that it does no harm to children.
Father Adrian McLeish, 45, a Roman Catholic priest at St Joseph's church in Gilesgate, Durham, held the largest known collection of illegal matter yet gathered electronically(13). 3,251 different image files each containing up to 15 pictures were recovered. The total number of image files found, including child porn, adult porn and drawings, was 8,998. There was evidence that McLeish had sent pictures of at least one of the boys he had abused and talked on the Internet of "grooming" the boy for use in later life. He had also enhanced some pictures to make them more sexually explicit. This is the first time a direct link between child abuse and the use of the Internet has been established. His conviction related to the indecent assault offences, but the use of the Internet for distribution of these images (also involving pseudo-photographs) made his sentence longer.
McLeish was sentenced to six years imprisonment by Newcastle upon Tyne Crown Court on the 13th of November 1996
The prohibition of child pornography is intended to reduce the market for this material. If consumption of child pornography is reduced, presumably production and the abuse of children will also be reduced.
On October 9th 2002, Agentia Giornalistica Italiana announced the discovery of an Internet site that sold little girls from Russia, at the amount of 30000 euro each. The site presented an organization that declared that it had been in the child pornography making business since 1999, in another 30 countries. In the summer of 2001, according with their own statements, they organized an adoption service , guaranteeing ‘safety and confidentiality’ and offering information on the procedures and the steps that needed to be taken in the adoption process. The site offered details on the payment procedure, in euro, or dollars, through an African bank, via Cyprus.
A study made in Spain(14) revealed interesting date about the child pornography market. A web page was created, and the texts implied a child pornography content. The page had 37000 visitors in a year, 45% were traced back to the United States, and 42 % in Spain. The study wanted also to show that monitoring certain location was technically possible, and not just a statement (as thought).
3. What can be done about it?
Both the Budapest Convention and the Canada’s Criminal Code (the two models analysed) agreed that a child pornographer should be liable to imprisonment.
As stated by Article 13 of the Convention, “each Party shall adopt such legislative and other measures as may be necessary to ensure that the criminal offences established in accordance with Articles 2 – 11 are punishable by effective, proportionate and dissuasive sanctions, which include deprivation of liberty”.
“1. Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, aiding or abetting the commission of any of the offences established in accordance with Articles 2 – 10 of the present Convention with intent that such offence be committed.
2. Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, an attempt to commit any of the offences established in accordance with Articles 3 through 5, 7, 8, 9 (1) a and 9 (1) c of this Convention.
3. Each Party may reserve the right not to apply, in whole or in part, paragraph 2 of this article”. (Article 11 – Attempt and aiding or abetting)
The Canadian model settles a similar pattern for the incrimination.
Although an adequate legal frame is essential in incriminating child pornography, measures need to be taken in order to implement the legal provisions. As few countries have had the chance to track, identify and prosecute e-criminals, international cooperation is vital, both in forming specialists able to deal with such challenges, and in establishing a set of rules concerning the legal procedures to be taken.
There is a diversity of measures concerning the responsibilities of various persons involved in child pornography and related sanctions. There are differentiated responsibilities in regard to producers, users and ISPs, and among ISPs there are differences in the roles of access, host and content providers.
There are several law enforcement difficulties linked to inadequate human resources, lack of technological facilities and capacity, and deficiencies concerning respect for good governance.
The cross border nature of child pornography poses particular difficulties to law enforcers, especially in regard to evidence gathering and sharing.
During the conference entitled “Combating child pornography on the Internet”, that took place in Vienna (September 29th –October 1st 1999), (15) a set of measures aimed at improving law enforcement efficiency and co-operation. These measures were:
· Law enforcement agencies should set up specialized units at national level, consisting of knowledgeable personnel and equipped with adequate technical facilities, that would operate as rapid contact points for the purposes of:
o responding quickly to requests for information on suspected intentional possession, production, distribution, importation, exportation, transmission and advertising of child pornography;
o exchanging potential evidence and intelligence expeditiously at international level and establishing a common format for the exchange of such information;
o improving and/or developing databases and specialised computer investigation techniques, such as undercover operations, for the purpose of prosecuting child pornography
o acting as a Centre of Excellence on cyber-crime issues (a national register of police and technical experts could be established or made available) for the purpose of sharing best practices and experience
o monitoring and scanning systematically the Internet (newsgroups, chat rooms and websites) for detecting child pornography
o developing intelligence analysis in order to determine priorities and to concentrate on child sex offenders
o acting as interface nationally and internationally with hotlines, taking into account their potential and technical expertise
Â§ Law enforcement agencies should establish efficient programmes for specialised training of personnel dealing with fighting child pornography, including but not limited to:
Â§ appropriate steps to ensure that training initiatives take into account child rights;
Â§ preparation of technical training course(s) for law enforcement officers, including courses available on the Internet, provided that confidentiality and access facilities to the course would be ensured;
Â§ organisation of regular meetings at national, regional and international levels of competent practitioners specializing in fight against child pornography on the Internet with a view to promoting general information exchange, best practices, tactical co-ordination and analysis of the situation
Â§ creation and maintenance of a digitised Central Library of child pornography images at the national, regional and international levels (made available on the Internet to law enforcers, with the necessary conditions and limitations as regards access and data protection issues)which would aid the search for victims, help to determine the nature of offences and train police officers.
Â§ Local, national, regional and international law enforcement agencies and organisations should co-operate closely to exchange relevant information and intelligence on child pornography on the Internet, by signing appropriate co-operation agreements.
Â§ Bilateral, regional and/or multilateral agreements to facilitate co-operation among and between law enforcers should be promoted
These are not the only possible measures . In fact, there is no “golden rule”, as most lessons and most of the rules will be learned and found as more cases will be brought to justice.
More than ever before, informatics specialists, and legal practitioners need to join hands and teach one other .
1 Commentary in the International Association of Penal Law , Newsletter no.1/1992, page 57
2 this can be done through legal measures (that impose various sanctions on the ISPs that do not restrict children’s acces), or by using technical means; in that case, the parents bear the main responsibility in restricting their children’ s acces.
3 www.aftenposten.no/english/ , November 9th 2002
4 R vs. Sharpe, www.cyber-rights.org/reports/childs.htm
5Ashcroft, Attorney General, et al. vs. Free Speech Coalition et. al., Certiorary to the United States Court of Appeals for the Ninth Circuit No.00 –795Argued October 30,2001 —Decided April 16,2002
6 www.efc.ca , “Child-less pornography”, January 25th 1996;
7Yaman Akdeniz, The regulation of pornography and child pornography on the Internet, <http://elj.warwick.ac.uk/jilt/internet/97_1akdz/> ;
8 Ashcroft, Attorney General, et al. vs. Free Speech Coalition et. al., Certiorary to the United States Court of Appeals for the Ninth Circuit No.00 –795Argued October 30,2001 —Decided April 16,2002
9 Attorney General, et al. vs. Free Speech Coalition et. al., Certiorary to the United States Court of Appeals for the Ninth Circuit No. 00.1293. Argued November 28, 2001. Decided May 13, 2002 (referring to the test set forth in Miller v. California, 413 U. S. 15 (1973))
10 the ruling can be found at www.supremecourtus.us/opinions/01pdf/00%2D795.pdf
12 in R vs. Sharpe, the accused questioned the constitutionality of section 163.1(4), stating that it was an unjustified limitation on his rights. The Crown relied on the expertise of two expert witnesses, that led evidence on the impact of child pornography regulations, apart from their distribution.
13 Akdeniz, Yaman "Governance of Pornography and Child Pornography on the Global Internet: A Multi-Layered Approach," in Edwards, L and Waelde, C eds, Law and the Internet: Regulating Cyberspace, Hart Publishing, 1997, pp 223-241.
14 Study made by “Accií³n Sanitaria y Desarrollo Social” (Anesvad), and published in “Libertad digital – diario en la red” , October 9th 2002
For more information see also:
1. LARS KLANDER, „Anti-hacker. A guide to computer network security” , edited by ALL EDUCATIONAL, Bucharest 1997;
2. IOANA VASIU, “Cyber Crimes”, edited by NEMIRA, Bucharest 1998;
3. Yaman Akdeniz, The regulation of pornography and child pornography on the Internet, http://elj.warwick.ac.uk/jilt/internet/97_1akdz/;
4. http://www.surfwatch.com ,
http://www.solidaok.com/, various means of parental control on illegal and harmful content;
5.R. v. Oakes,  1 S.C.R. 103, http://www.cyber-rights.org/csc- scc/en/pub/1986/vol1/html/1986scr1_0103.html
6. Dagenais v. Canadian Broadcasting Corp.,  3 S.C.R. 835, http://www.cyber-rights.org/csc-scc/en/pub/1994/vol3/html/994scr3_0835.html;
7. www.cyber-rights.org/reports/child/html ;
10. www.usdoj.gov/criminal/ceos/index.html ;