Legal and Ethical Challenges of Online Child Pornography Regulation LAW302

ACKNOWLEDGMENT

This research was funded by the

ABSTRACT

Pornography has been the most controversial topic arising from the use of the Internet in recent years. Its availability on the Internet has caused fear and a moral panic among the government, law enforcement bodies such as the police, prosecutors and judges together with the media in general. There is no settled definition of pornography in a multinational environment such as the Internet and cultural, moral and legal variations all around the world make it difficult to define pornographic content in a global society.

This article will discuss two different issues within one context, the Internet: the regulation of harmful content such as pornography and regulation of illegal content such as child pornography. These issues are different in nature and should not be confused. Any regulatory action intended to protect a certain group of people, such as children, should not take the form of an unconditional prohibition of using the Internet to distribute certain content that is freely available to adults in other media. The production and distribution of child pornography is illegal in the UK and in many other countries. This also applies to the Interne.t

Child pornography existed before the creation of the Internet. It is not possible to say whether the advent of the Internet has fuelled the demand for child pornography and expanded an existing market, or whether it simply satisfies in new ways a market that would have existed in any event. It is clear, though, that the Internet provides an environment for the proliferation of child pornography and the creation of an expanding market for its consumption. This paper explores three important questions:

1. What is online child pornography?
2. Is there a typology of offending online?
3. If so, what are the implications for law enforcement?

WHAT IS CHILD PORNOGRAPHY? A NON-LEGAL DEFINITION

As pointed out by Taylor and Quayle (2003), the legal definition of child pornography does not capture all the material that an adult with a sexual interest in children may consider sexualised or sexual. As they argue, understanding why child pornography is produced and collected requires us to think beyond the legal definition of child pornography. Based on a study of online content at the Combating Paedophile Information Networks in Europe centre (COPINE), Taylor and Quayle identified 10 categories of pictures that may be sexualised by an adult with a sexual interest in children. Material in some of these categories does not come within the legal definition of child pornography. For example, in the first category are non-erotic and non-sexualised pictures of children in their underwear or swimming costumes from commercial or private sources, in which the context or organisation by the collector indicates inappropriateness. The second category comprises pictures of naked or semi-naked children in appropriate nudist settings. The third category is of surreptitiously taken photographs of children in play areas or other safe environments showing underwear or varying degrees of nakedness. Although material in the first category and some of the material in the second and third will not be caught by the legal definition of child pornography, all may be indicative of a sexual interest in children and are therefore potentially important in the investigation of child pornography offences.

THE LEGAL DEFINITION OF CHILD PORNOGRAPHY

The Australian regime to regulate pornography (whether online or not) essentially relies on state and territory laws (for convenience referred to here as state laws). The provisions prohibiting the possession of child pornography are listed in Table 1. There are also provisions against the manufacture, distribution or sale of child pornography with more severe penalties.

Child pornography is generally defined as material that describes or depicts a person under 16 years of age, or who appears to be less than 16, in a manner that would offend a reasonable adult. However, this legal definition can be difficult to apply (Grant et al. 1997) because of jurisdictional differences. For example, in some states there must also be the depiction of sexual activity by the child or some other person in the presence of the child. Difficulty also arises from the fact that child pornography laws usually require a judgment to be made whether material is offensive or not.

The state laws regarding child pornography intersect with federal censorship laws contained in the Classification (Publications, Films and Computer Games) Act 1995 (Cwlth). In two jurisdictions (NSW and NT) the legal definition of child pornography also includes material that has been refused classification under this Classification Act.

The Broadcasting Services Amendment (Online Services) Act 1999 (Cwlth) created a non-criminal process for reporting web sites that host material which would be refused classification (as well as X- and R-rated material that is easily accessible without adult verification). The Australian Broadcasting Authority (ABA) can issue a take-down notice to have Australian-based web sites remove this content. If the site is hosted overseas, the ABA can notify content filter developers to add it to their lists of offensive sites (Chalmers 2002).

PROPOSED NATIONAL LAW

In June 2004 the Australian government introduced a Bill to enact federal laws, tied to the power to regulate telecommunications, covering child pornography and grooming (Attorney-Generals Department 2004). The Bill defines child pornography in terms of the depiction of a child under 18 years of age and provides for a penalty of 10 years for possession of child pornography, and 15 years for online grooming.

CHILDREN ACTUALLY OR APPARENTLY UNDER 16

It is not necessary to prove that a child depicted was in fact less than 16 years of age at the time the image was created. It is enough that they appear to be under that age. The legislation therefore applies to images of a person over the age of 16 who is made to appear younger than that. Standard medical indicators of the physical developmental stages of children may be used to assess whether an image depicts a child under the age of 16 (Censorship Review Board 2000).

MORPHED IMAGES OF CHILDREN

The definition of child pornography may include morphed pictures. Taylor (1999) refers to such images as pseudo-photographs, and they are classified according to three types:

• Digitally altered and sexualized images of bodies, such as a photograph of a child in a swimming costume where the costume has been electronically removed;

• Separate images in one picture, such as a childs hand superimposed onto an adult penis; and

• A montage of pictures, some of which are sexual.

The ease, with which a morphed collection can be put together, even without the capacity to digitally alter images, is illustrated by the case of the convicted double murderer and serial rapist Lenny Lawson. Lawson was one of Australias longest-serving prisoners when he died in custody at the age of 76, three days after being transferred to a maximum-security unit. This transfer followed the discovery in Lawsons cell of a collection of videotapes which in part contained images from Sesame Street spliced with other program material to produce what was described by the prison psychologist as a collection of voyeuristic sexual fantasies and sexual perversion, often associated with children (Mitchell 2004).

Table 1: Child pornography possession offenses

CREATING FICTITIOUS CHILDREN UNDER 16

Child pornography can be created without directly involving a real person. The words describing or depicting are capable of including text, images, and three-dimensional objects. While these laws were initially framed about photographs, videos, and film, the language extends to cover the development of online pornography. The offense provisions do not require a real person to be described or depicted, and they include fictional characters in text or digitally created images of fictional characters.

In Dodge v R (2002).

A Crim R 435, a prisoner in Western Australia who was serving a long sentence for sexual offenses against children was convicted of further offenses after writing 17 sexually explicit stories about adult males involved in which it is safe to offend. Such sting operations may need to operate on several levels to capture the various ways in which offenses may be committed online.

• Police stings using false ts target unsophisticated users (Cyberspace Research Unit 2003). By catching trawlers and deterring those who may be thinking of experimenting with child pornography, an admittedly low level of offending will be disrupted. The Australian High Tech Crime Centre has joined the Virtual Global Taskforce of police from the UK, US, and Canada to run such sting operations and other coordinated activities (The Guardian 2003).

• Sting operations aimed at groomers are more finely targeted at those who represent a real threat in terms of contacting children and acting out their sexual impulses. Queensland police have been able to operate with an anti-grooming law in that state to locate and prosecute groomers. We do not know how prevalent grooming is, and stings of this type may rely on the police officer and the offender drawing on a shared fantasy of the compliant and sexualized child (Taylor & Quayle 2003).

Much more needs to be done to understand the problem of online child pornography. The literature on adults with a sexual interest in children fails to accommodate behavior that relates to the new technologies (Taylor & Quayle 2003)

Table 2: Categories of child pornography

REASON FOR CHILD PORNOGRAPHY

The most obvious use of child pornography is to aid in the sexual arousal and gratification of adults. However, child pornography is also used to;-

• Validate one behavior as normal

• Seduce children and lower their inhabitations

• Blackmail a children

• Preserve a childs youth in an image at the age of preference

• Establish trust among their pedophiles

• Gain entrance to private clubs

• Produce for commercial gain

• Internet the reason for the promotion of child

• The internet has emerged and increased the problem of child pornography by increasing the amount of material available, the efficiency of its distribution, and the ease of its accessibility

• Permits and permits large quantities of pornographic images from around the global

• Provides pornography available instantly at any time and place

• Allows pornography to be used (apparently) anonymously and privately

• Facilities direct communication, data, and image sharing among users

• Delivers pornography with any lost or at a very low cost

• Provides images that are highly digital qualities to not decorate and can be conveniently kept by any person

• Provides for a variety of forms (picture, video, sound) as well as the potential for real-time and interactive experiences Permit access to digital images that have been and can be modified to create composite and real-time

SEXTING A REASON BEHIND CHILDS PORNOGRAPHY

Sexting is a combination of the words sex and texting and is used to describe the digital recording of naked, semi-naked, sexually suggestive over explicit images. And their distribution by email, mobile, phone messaging, or through the internet on social networking sites

Studies into the Australian legal framework used to define and manage sexting emphasize processes of trial and error involved in the regulation of this complex issue.15 both revealing the divide between digital natives and digital immigrants and demonstrating significant challenges posed by digital technologies to child protection16

An evaluation of the framework for safer mobile use also stressed the importance of multi-stakeholder involvement to successfully address-e-safety issues. The European Commission found that the implementation of the framework was effective; however further recommendations for the framework included the classification of commercial materials to ensure-age-appropriate content for minors parental control to block online content on their children's devices

Although in many cases, young people talk about sex as normal (if at times unwanted) activities among peers, it is widely categorized as illegal behavior. A recent report by the UK- based National society for the prevention of cruelty to children (NSPCC) argued that children and young people may view images of similar-aged peers which could be classed as age-appropriate, lei illegal, or sexual behavior. It is very much difficult to be limited about the extent of internet child pornography, but all of the available evidence points to it being a major and growing problem19. At any time, there are estimated to be more than one million pornographic images of children on the internet with 200 new images posted daily. One offender arrested in the UK possessed 450,000 child pornographic images. It has been reported that a single child pornography site received a million hits in a month.

CONCLUSION

As this chapter has shown internet has brought with it such grave and far-reaching consequences to child pornography, that it is well-founded to state that we now have a new situation. Some of the largest changes the internet has had on child pornography are the volume and availability of the material. The effect of this is that more people consume child pornography. This, in turn, means that more and new children are abused to be able to meet the increased demand for this material. An area of great concern is that the age of the children involved is decreasing. In addition to this the nature of the internet allows the material to continually be available for a countless number of people for the unforeseeable future, this entails an additional and unceasing violation of the victim.

At the same time, the Internet brings child pornography easily closer to us, and the computer screen also has a de-sensitizing effect. The medium offers users instant gratification due to the simple and rapid access to a large amount of child pornography. The Internet attracts people, who without this medium, would not have come into contact with child pornography. This indicates that the medium lowers the threshold for what is considered to be socially acceptable forms of sexual gratification. It is however important never to forget that each child pornography image is a documentation of a criminal act and a violation of a childs rights. One of the attractions of the medium for pedophiles is the high level of anonymity it offers. Privacy and freedom of expression have received a great deal of attention in the discussions of individual rights in digital environments. However, while privacy and freedom of expression are important rights to protect they must not take precedence over all other rights such as the right of the child not to be abused. The rights of privacy and freedom of expression should continue to be defended, but it is time that we also discuss the price that is paid for these rights.