The Internet is overwhelmingly a power for good. It provides cheap and easy access every moment of every day to a vast reservoir of information and entertainment and it is transforming the nature of commerce and government. However, with so many users world-wide accessing so many web sites, there is bound to some offensive, and even illegal, use of the Net. Pornography is a major element of the Internet. It comes in many forms and in large volume.
Child pornography refers to pornography depicting sexually explicit activities involving a child. It may use a variety of media, including writings, magazines, photos, sculpture, drawing, cartoon, painting, animation, sound recording, film, video, and video games. Child pornography is divided into simulated child pornography and pornography which was produced with direct involvement of the child (also known as child abuse images). Abuse of the child occurs during the sexual acts which are recorded in the production of child pornography.[1]
Legal definitions of child pornography generally include sexual images involving prepubescents and pubescent or post-pubescent minors and computergenerated images that appear to involve them. Most possessors of child pornography who are arrested are found to possess images of prepubescent children; possessors of pornographic images of post-pubescent minors are less likely to be prosecuted, even though those images also fall within the statutes.[2]
Producers of child pornography try to avoid prosecution by distributing their material across national borders, though this issue is increasingly being addressed with regular arrests of suspects from a number of countries occurring over the last few years.[3] The prepubescent pornography is viewed and collected by pedophiles for a variety of purposes, ranging from private sexual uses, trading with other pedophiles, preparing children for sexual abuse as part of the process known as "child grooming", or enticement leading to entrapment for sexual exploitation such as production of new child pornography or child prostitution. Child pornography is illegal and censored in most jurisdictions in the world.[4]
The cyberspace provides an inexpensive and anonymous arena for offering, procuring, distributing, transmitting and sharing indecent pictures and videos, and represents an easy and very cheap way to access and obtain child pornography. The diffusion of Internet has resulted in an explosion of the availability, accessibility and circulation of such material in the last years[5].
In order to fight child pornography, different initiatives were adopted by the international and regional organisations such as the United Nations, the Council of Europe and the European Union. Many European and non-European countries introduced specific criminal provisions against this phenomenon in order to bring their legislation in line with international standards. Most if not all European countries criminalize the intentional acts of producing, offering, distributing and making child pornography available. Most of them make also an offence of mere possessing of such material on a computer system or a computer-data storage medium[6]. Some went over criminalizing a further preparatory act, such as the knowingly access, through telecommunication systems, to child pornography.
This article refers to the most recent international and regional legal sources in the fight against child pornography, focusing on two paradigmatic preparatory acts: possessing child pornography and knowingly obtaining access (looking at), through information and communication technologies, to child pornography (par. 2). It gives a picture of on how some national criminal legislations implemented the international and regional legal sources in this area (par. 3). It also describes the specific defenses provided by some certain national legal systems in order to limit the enforcement of the possession offence (par. 4). Then it points out the main theories proposed by the scholars justifying the criminalization of mere possession of child pornography on a computer system (par. 5). The second part of the article analyzes the most frequent behaviours adopted by child pornography consumers on the Internet and makes reference to the most recent court's approach to possession of such material (par. 6). Some interesting cases of the common law countries, with special regard to deleting of child pornography images from a computer will also be mentioned (par. 7). Finally, short references will be made to the recent trend at national and international levels to criminalize not only the preparatory act of possession child pornography, but also mere access to child pornography through information and communication technologies (par. 8). The conformity of these preparatory acts
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with the fundamental principles of criminal law will be also discussed (par. 9).
Among the most important international and regional legal sources in the fight against child pornography, there are the United Nations Convention on the Right of the Childs[7] and the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography[8], the Council of Europe Recommendation Rec. (2001)16 of the Committee of Ministers to Member States on the protection of children against sexual exploitation[9], the Council of Europe Convention on cybercrime[10], the Framework Decision of European Union Council Framework Decision 2004/68/JHA of 22 December 2003 on fighting sexual exploitation of children and child pornography[11] and the Council of Europe Convention on protection of children against sexual exploitation and sexual abuse, recognized nowadays as an important international instrument in the fight against child sexual abuse[12].
According to art. 1 Council of Europe Rec. (2001) 16, child pornography offences have to include the following intentional acts committed without right: "producing child pornography for the purpose of its distribution; offering or making available child pornography; distributing or transmitting child pornography; procuring child pornography for oneself or for another and possessing child pornography".
Art. 9 of the Council of Europe Convention on cybercrime provides that each Member State shall take the necessary measures to make as an offence not only the intentional act of production, distribution, dissemination or transmission, making available and acquisition of child pornography, but also possession of such material. Each Party may reserve the right not to criminalize, in whole or in part, possession of child pornography on a computer system or a computer-data storage medium (art. 9, paragraph 4, CoC). According to the Explanatory Report to the Cybercrime Convention, the scope of art. 9 CoC is "to strengthen protective measures for children, including their protection against sexual exploitation, by modernizing criminal law provisions to more effectively circumscribe the use of computer systems in the commission of sexual offences against children"[13]. The term "child pornography" includes not only real, but also realistic and virtual pornographic material (Art. 9, paragraph 2, CoC)[14].
Similarly to art. 9 of the Convention on Cybercrime is art. 3, paragraph 1, let. d) European Union Framework Decision 2004/68/JHA of 22 December 2003[15]. It provides that each Member State has to adopt necessary measures to ensure that also the intentional conduct of acquisition or possession of child pornography is punishable whether undertaken by means of a computer system or not, when committed without right. Member States may exclude from criminal liability conduct relating to child pornography in the case of production and possession, images of children having reached the age of sexual consent are produced and possessed with their consent and solely for their own private use (art. 3, paragraph 2, let. b). The definition of child pornography includes images representing a real child, a real person appearing to be a child and realistic images of a nonexistent child[16].
In 2009, the European Commission presented a Proposal for a new Framework Decision on fighting sexual abuse and sexual exploitation of children and child pornography[17]. The proposed Framework Decision aims at building a more coherent framework to increase effectiveness in preventing and fighting this type of crime as well as protecting the victims. The proposal contains provisions aimed at extending the criminalization of child sexual abuse and exploitation of children, such as child grooming (art. 5) or knowingly obtaining access, by means of an information system, to child pornography (art. 4, let. e). Any reserve can make by the Member States in order not to criminalize possession of child pornography and the knowingly viewing of such material. The proposal for a new Framework Decision goes over the other international legal sources. It criminalizes preparatory acts such as the mere attempt to possess or view of child pornography (art. 6, paragraph 2) and preparatory offences such as the dissemination of materials advertising the opportunity to commit any of the offences referred to in articles 2 to 5 (art. 6, paragraph 3, let. a): e.g., possession of child pornography or knowingly access to child pornography). These preparatory offences are not legitimate as they are not in compliance with the general principles of criminal law and in particular with the harm principle. Such offences do not criminalize a clear and imminent threat or danger to the protected legal interests[18].
Possession of child pornography is also criminalized by art. 20, para.1, let. e) Council of Europe Convention of Lanzatore. In line with to the Cybercrime Convention, it allows each Party to reserve the right not to criminalize, in whole or in part, the production and possession of pornographic material whether it consists exclusively of simulated repre-
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sentations or realistic images of a non-existent child or involves children who have reached the age set in applicability of art. 18, paragraph 2, where these images are produced and owned by them with their consent and solely for their own private use (art. 20, paragraph 3).
Art. 20, paragraph 1, lett. f) of the Convention of Lanzarote introduces a new element in respect to the Cybercrime Convention, also making an offence of knowingly obtaining access, through information and communication technologies, to child pornography. Nevertheless each Party may reserve the right not to apply, in whole or in part, art. 20, paragraph 1, lett. f) (art. 20, paragraph 4). According to the Explanatory Report to the Convention, the mens rea of the offence allows to avoid the criminal liability of the consumers accessing websites containing child pornography inadvertently[19]. The intentional nature of the offence can be deduced from the fact that it is recurrent or that the knowingly access was committed via a service in return for payment[20].
In line with the mentioned international and regional legal sources, most European countries currently criminalize the mere possession of child pornography images whether undertaken by means of a computer system or not. If the description of possession offences is quite similar among the European national legal systems, the prison sentences of such acts vary a lot. It is useful to make a reference to some national legislations concerning possession offence to value how the international and regional legal sources are implemented in different ways between the States.
Art. 600-quater of the Italian Criminal Code criminalizes "whoever knowingly provides for himself or detains pornographic material realized using a person under the age of 18 years"[21]. The illegal act of possession is criminalized with a up to three-year sanction and a minimum of EUR 1.549 fine. Art. 600-quater, paragraph 2, Italian Penal Code introduced with art. 3 of the law n. 38/2006, increases the prison sentence for possession of a huge quantity of pornographic material. In order to implement the European Union Framework Decision 2004/64/JAH, the Italian legislator with the Law n. 2006 also criminalized possession of virtual child pornography, such as virtual child images created using images of person under the age of 18 years or a part of them (art. 600-quarter.1 c.p.)[22].
Art 227-23 of the French Penal Code, introduced with the Law n. 305/2002, criminalizes possessing such an image or representation with a two-year prison sentence and EUR 30.000 fine[23]. The provision also applies to possession of pornographic image of a person whose physical appearance is that of a minor unless it is proved that the person was over eighteen on the day the picture was taken or recorded (art. 227-23-7 French Penal Code).
The previous art. 189, paragraph 1, let. b) of the Spanish Penal Code, introduced with the law n. 11/1999, punished not only the production, selling, distribution or exibition of child pornography or the facilitation of such activities, but also possession of child pornography for the commission of one of the mentioned activities. With the law n. 15/2003 the Spanish legislator modified the possesion offence. The new art. 189.2 Spanish Penal Code punishes with the imprisonment from three months to one year, the mere possession of child pornography for private use[24].
Much more severe is the art. 51, paragraph 1, Romanian Law n. 161/2003 criminalizing possession of pornographic materials with three to twelve year prison sentences and denial of certain rights. Art. 51, paragraph 2, Law n. 2003 punishes the attempt of such an offence. The definition of pornographic material with minors, provided by art. 35, paragraph 1, let. i), Law n. 161/2003, includes real, realistic and virtual child images with an explicit sexual behaviour.
Most non-European countries criminalize mere possession of child pornography, such as Mexico (art. 202, 202-bis Penal Code)[25], Colombia (art. 218 Penal Code)[26] and Santo Domingo (art. 24.2 Ley No. 53-07 sobre Crímenes y Delitos de Alta Tecnología)[27]. Other countries limit the application of the possession offence requiring specific mens rea elements. For example, Argentinian Penal Code only criminalizes possession of child pornography with the intent to distribute or sell such material (art. 128, paragraph 2, Penal Code)[28].
Section 163.1.(4) of the Canadian Criminal Code punishes whoever possesses child pornography with imprisonment for a term not exceeding five years[29]. Possession of child pornography is also banned in the United States. The prohibitions of child pornography are codified in the Child Pornography Prevention Act of 1996. § 2252A US Code concerning "certain activities relating to material involving the sexual exploitation of minors" punishes whoever knowingly possesses one or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction. Many States in the United States currently criminalize the knowingly possession of child pornography[30]. The formulation of the possession offence is quite similar among the state statutes. Most of them make an offence the mere possession
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of such material. Federal statute and state statutes prohibit only the knowingly possession.
In order to limit the applicability of the possession offence, some legislators, particularly of common law countries, have provided adequate defenses to cover those who need to have contact with child pornography material in the course of their legitimate works and professional activities and who obtains access to such material accidentally. A paradigmatic example of these defenses is set out in Section 160.2 of the Criminal Justice Act of the United Kingdom[31]. It provides three defenses, namely, legitimate reason, unknowing possession and unsolicited material[32].
The "legitimate reason" defense is designed to protect specific cathegories (i.e. prosecutors, police, forensic staff, doctors, psicologists, private organizations, etc.) when carrying out their activities[33]. Recently, there have been some cases in the common law countries where defendants claimed that they had a legitimate reason for owing child pornography images for academic researches[34]. Nevertheless the courts have recognized this defense only in limited circumstances.
According to some courts in United Kingdom, the evaluation of the existence of a legitimate reason to possess child pornography is a factual question. Therefore the judge has to value case by case whether the defendant is a person with indecent and immoral interests or conversely a real researcher with a justificable reason to possess such material[35].
As the Court stated in Wrigley[36] there is no legitimate reason if the researcher possesses child pornography images for his personal gratification and not for genuine academic aims. Wrigley, a graduate student, claimed that he possessed the child pornography images as part of academic research and in particular for his PhD research project. Nevertheless the Court, taking into account that the defendant has not discussed his PhD research project with any tutor, argued that the possession of such material was "for his personal gratification and/or his sexual orientation".
The defendant will be able to claim that he had an unknowing possession of child pornography when he did not know or did not have reason to suspect that the received images were indecent. A person is not guilty of possession of child pornography contained if a file or in an email attachment if he is unaware it contains an indecent image[37].
The unsolicited defense is available where the child pornography material is sent to the defendant without any prior request by him and when he did not keep it for an unreasonable time. That can happen when someone receives an unsolicited e-mail (spam) and the attached file contains child pornography images.
The United Kingdom Sexual Offences Act of 2003 introduced further defenses for specific cases of "marriage and other relationships"[38]. The defendant can claim that the subject retracted in the picture was of the child aged 16 or over, and that at the time of the offence charged the child and he were married, or lived together as partners in an enduring family relationship. The scope of this new defense is to avoid ilegitimate and dangerous intrusion into the private sphere of a marriage relationship or into a consolidate cohabitation.
Also the United States Federal Code provides some specific defenses in order to limit the application of the possession offence[39]. The first defense exists whether the possessor has less than three matters containing any visual depiction. The little quantity of possessed material would demonstrate that the defendant is not particularly dangerous and at the same time the occasionality of his behaviour. The second defense can be claimed by the subject that "promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof took reasonable steps to destroy each such visual depiction or reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction"[40].
The criminalization of mere possession of child pornography raised a lot of questions and critics[41]. The scholars underlined the difficulties to determine the legal interest ("Rechtsgut") protected by the possession offence due to the impossibility to identify it with the sexual integrity of the abused minors. Mere possession of child pornography produced through the exploitation of children is an act subsequent to the harm of the integrity of abused children. For this reason, the legal interest protected by the possession offence can not be determined in the children's sexual integrity[42].
Some scholars have tried to justify the criminalization of the possession offence in a different manner. Three are the principal reasons adduced by the scholars to legitimate the criminalization of
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such act[43]: 1) possession as contribution to the activity of production of child pornography material; 2) possession as a threat for the commission of further offences related to child pornography; 3) possession offence as an instrument to criminalize who produces such contents.
According to the first position, the possession of child pornography represents a contribution to the activity of production of such material. Whoever possesses child pornography images has an indirect responsability respect to the producer's acts. The offer and demand for such material would be strictly connected insomuch as it is possible to affirm that whoever acquires and possesses indecent material would be responsible also for its production[44]. This position is not completely convincing. The possessor cannot take part in the offence against the sexual integrity of children, which has lead to the production of such material[45]. The possessor could be punished only if it is possible to demonstrate that he induced the producer to produce the indecent images with the intent to buy them subsequently[46]. Moreover, it is evident that the criminalization of possession of child pornography is not aimed at punishing the induction to the production, given that the possessor could be punished for his partecipation to the offence against the sexual integrity of the minors[47].
According to some scholars, the criminalization of possession offence is justified in order to avoid the commission by the possessor of future illegal acts against children. Some studies demonstrate that possession of such material is strictly connected to further illegal acts against children. Nevertheless there are currently no specific research or scientific evidence showing any direct link between possession of these images and the increase risk of sexual offences against children.
A third position states that the criminalization of possession is instrumental to punish the producer of such material in such cases where it is not possible to demonstrate his participation at the production of the incedent contents. This is for example the scope pursued by the German legislator in order to justify the introduction of the 27[th] Law reforming German Penal Code[48]. Given to the fact than producers of child pornography usually use masks in order to hinder their identification by the law enforcement authorities, it was necessary to criminalize stronger the act of distribution of child pornography images. This argumentation cannot be accepted because it an evident expression of a "suspicion criminal law" ("diritto penale del sospetto"). The child pornography distributors would be criminalized with a stronger prison sentence as they would be suspected to have participated to the production of indecent material, even though the mere act of distribution did not represent a clue of his participation in its production[49]. The legislators use the same reasoning when they decide to criminalize who possesses child pornography because it is possible that he participated to the production or distribution of illegal material[50].
More correct seems the position, which is also in line with the international legal sources, affirming possession of child pornography has to be criminalized because it stimulates demand for such material and at the same time perpetuates the harm to the dignity of children that were abused[51]. Criminalizing possession of child pornography responds to a "post consumative logic", similar to that justifies the receiving offence[52]. On the one side, every time the possessor of child pornography looks at the images, he perpetuates the attack against the freedom and dignity of the abused persons. On the other side, the possessor contributes to the maintenance and the expansion of the child pornography industry.
The concept of possession is key to the offence[53]. Nevertheless it is not always easy to define. The definition of possession has been discussed a lot in the civil law area[54]. In the field of criminal law, scholars still discuss the opportunity to follow the meaning of possession elaborated by civil law or if would be better to create an indipendent criminal law concept of possession in terms of factual power on the thing[55].
According to the United States Model Penal Code, there is criminal possession when "the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession"[56].
The meaning of possession is evident with regard to a physical object: touching something, holding it, having control of it, etc.[57]. On the contrary, the concept of possession is more elusive with regard to a digital object in the cyperspace[58]. In order to determine whether a defendant possessed child pornography on a computer system, most of the common law courts take into account factors such as dominion and control over the possessed object[59]. In particular, courts usually focus on the user's ability to retain the images, zoom, print or enlarge them[60]. In United States v. Trucker, the court explained that the defendant can control the images in many ways, such as copying them, printing them, enlarging them, etc[61].
Child pornography consumers can, after viewing the images on the Internet, download them to their
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computer system or computer medium storage. To download the images, the consumers can use a variety of methods. They normally use file sharing programs, transfer the images through chat rooms or newsgroups or use removable storage mediums such as floppy disks, flash drives, etc[62]. The downloaded images became part of the data on the consumers' computer and can be accessed any time they want without being connected to the Internet. The majority of courts in the common law and civil law countries agree that such acts must be criminalized representing a knowingly possession of child pornography. Consumers who download intentionally child pornography to their computers have a direct physical control of such material and are in actual possession of it. They can enlarge the images, print them, copy them or delete them.
It could also happen that Internet users only wants to view the images available on line without downloading them to their computer. While the users do not save a copy of the material, their computer automatically makes a copy of the data from the visited websites in the form of temporary Internet files or "cache" and store them on their computer. This technical process occurrs automatically without any action by the users. Even if it can be deactivated, most Internet users are unaware about the functionning of the web browser and how the Internet temporary files correctly work. The temporary files are real files that contain images that can be managed and manipulated by the user like any other file, also without an Internet connection.
Most of the national courts in European and non-European countries have determined that images in a cache are sufficient to show possession, whether the users is aware of the existence of the images in the cache and he is able to access to the cached files[63].
Following this approach, some courts use the existence of images in the defendant's computer's browser cache to demonstrate that by viewing the images, he came into possession of them. Therefore the ignorance of the cache precludes a conviction of knowing possession. The mens rea of "knowing" requires that the defendant is conscious and aware of his act and realizes what he is doing. If the defendant is unaware that the viewed images were saved to the cache files the prosecution can not prove that he intended to save and consequently possess them[64].
There have recently been a number of cases, especially in common-law countries, considering whether deleting images from a computer still constitute possession of child pornography. According to some courts, deleting a file does not remove it from the hard drive but simply change its location. The deleted files remain on the computer of the defendant and he still possesses them. Nevertheless the solution of these cases raise som legal problems with regard to the enforcement and applicability of the possession offence.
Some Courts find that the use of software which erase the child pornography images inferentially permit to demonstrate that the user knows that his computer automatically saved them[65]. In United States v. Trucker, the defendant admitted having viewed child pornography on line. Nevertheless he claimed that he deleted the images after each viewing because he did not want to have such material on his computer. According to the court, the deletion of the images demonstrates that the defendant understood that his computer was saving them. That was sufficient for the judges to prove owned the images. Similarly, the case People v. Scolaro where the Illinois Court of Appeal inferes by the use of a evidence eliminator program, that the defendant knew that he had illegal child pornographic material on his computer and punished him for possession of such material[66].
This conclusion is not legally correct. The mens rea of knowingly requires to prove that the defendant knows how to retrieve the deleted files of child pornography and his ability to do that.
In the cases R. v Porter[67] and R. v. Clark[68] the United Kingdom and New South Wales Courts respectively consider the issue of deleted child pornography images and placed in the recycle bin of the computer which had then been emptied. In both cases, the defendants argued that they did not owed the material anymore as they had taken all the measures to destroy them by deleting and placing them in the recycle bin, though retrievable with specialist software.
Using a constructive notion of possession, the Court of Appeal in Porter settled that a user cannot be said to have control of images if he is no longer able to retrieve or gain access to the deleted indecent images on his computer. In particular, the defendant will not be in possession of the child pornography whether he does not have the relevant software and the technical skill to carry out the retrieval. The same outcome has been followed in the recent case R. v. Clark[69]. The Court has affirmed that there was no evidence to prove the knowingly possession of child pornography on an information system because there were not elements indicating that Clark knew how to retrieve the deleted files.
The outcome of the mentioned cases would introduce a sort of "subjective element into the concept of possession of child pornography in the context of
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computer images"[70]. Following this approach, a new "deletion defense" would be available to the computer illiterates but not to the knowledgeable[71]. Thus, computer illiterate defendants are able to access and look at as many images of child pornography as they wish. On the contrary, users with a computer knowledge could not claim the "deletion offence", because they would have the necessary skills to retrieve or gain access to the deleted child pornography images. Therefore they could not legitimally look at the images on screen.
Only performing a questionable legal interpretation through a broad constructive understanding of the concept of possession the courts could include those who are just looking child pornography on the Internet without downloading the visioned material or have deleted it after each viewing within a possession offence. Nevertheless, this interpretation is not in accordance with the fundamental principles of criminal law and in particular with the rule of law.
With the aim of punishing also the mentioned behaviours committed by computer illiterates and by users that limit themselves to viewing the images on screen without downolading them, some countries have recently introduced a specific offence that criminalize the access or mere viewing of such material. In particular the need to criminalize the viewing of child pornography has arisen for the cases in which a defendant admits to view indecent images in Internet but claims that he did not download such material or did no know that the viewed images were automatically saved in the Internet temporary files.
The mere viewing of child pornography is already criminalized in some countries. The 18 U.S. Code § 2252(a)(4), amended in October 2008, punishes whoever knowingly accesses with the intent to view one or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction.
Also some American States criminalize the mere viewing of child pornography. Nevada's statute criminalizes "any person who, knowingly, willfully and with the specific intent to view any visual presentation depicting a person under the age of 16 years engaging in or simulating sexual conduct, uses the Internet to control such a film, potograph or other visual presentation"[72]. § 2907.323(A)(3) of the Ohio Revised Criminal Code criminalizes not only possession but also viewing any material or performance that shows a minor who is not the person's child or ward in a state of nudity. Also New Jersey makes an offence the mere viewing of child pornography. § 2C- 24-4(5)(B) N.J. Stat. Ann. criminalizes "any person who knowingly possesses or knowingly views any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, including on the Internet".
Viewing child pornography is also banned in Canada. Section 163.1 (4.1) of the Canadian Federal Code criminalizes "a person accesses child pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself".
Similarly, art. 227-23, paragraph 5, of the French Penal Code, criminalizes the habitual consultation of a websites or any resource publicly accessible that makes available such material. This act is punished with up to a two-year prison sentence and a fine[73].
With the Convention on the protection of children against sexual exploitation and sexual abuse of 2007, the Council of Europe has recently considered criminalizing the mere viewing of child pornography. Art. 20, paragraph 1, let. f) of the Convention invites each Party to criminalize whoever knowingly obtains, through information and communication technologies, child pornography. Art. 20, paragraph 4, of the Convention allows each Party to make reservation in respect of such offence reserving the right not to criminalize the access to such material. The mens rea of the provision does not allow to sanction whoever accesses websites containing child pornography inadvertently. The intentional nature of the provision can be deduced from the fact that the behaviour of the consumer is recurrent or that the offences were committed via a service in return for payment[74].
According to the Explanatory Report to the Convention, this new offence "it is intended to catch those who view child images on line by accessing child pornography sites but without downloading and who cannot therefore be caught under the offence of procuring or possession in some jurisdictions"[75]. For a similar reason, the European Commission with the Proposal for a Framework Decision on fighting sexual abuse provides a new offence criminalizing the knowingly access to child pornography (art. 4, let. e). The aim of the provision would be to cover cases where viewing child pronography from websites without downloading or storing the images does not amount to possession of or procuring child pornography[76].
Make the mere viewing child pornography an offence raises some legal questions[77]. Prosecuting someone
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for simply viewing websites containing child pornography images could lead to absurd and unfair results. It could mean that someone who accidentally or out of curiosity clicks on a link that takes him to child pornography material could be prosecuted for the act of viewing it[78]. In order to avoid this risk, law enforcement should take into account evidence showing that the viewing of such material was accidental or otherwise unintentional. The prosecutor would look for example at the amount of the images stored into the cache file in order to determine if the Internet user was actively looking for child pornography or merely "stumbled" on the website. It could also take into account if the user possessed a password in order to access specific websites, chat or newsgroup containing such material or committed the offence via a service in return for payment.
Despite efforts to save the legitimacy of this offence, three are the most relevant doubts prosecuting people for mere viewing child pornography.
First of all, the viewing child pornography offence seems to be a "thought offence". This offence would not criminalize an illegal act, but the pure thought, the suspicion that the viewer would procure or obtain for himself or a third party child pornography. This offence is an expression of a criminal law with a preventive function. It criminalizes ambiguous and indeterminate acts with an immoral significance, but that do not necessary have any harmful effect.
Secondly, the criminalization of mere viewing or looking at child pornography is in contrast with the fundamental criminal law principles of ultima ratio and proportionality. It only criminalizes an indirect risk of an harm. The mere viewing of child pornography creates the risk that the pedophile procures for himself or for a third part the child pornography images. That creates the following risk of offering or making them available to others.
No scientific and criminological evidence has been provided yet that viewing child pornography increase the risk of developing pro-rape attitudes and committing sexual offences. There is no evidence that consumption of child pornography alone represents a risk factor for committing further sexual offence[79]. International organizations and national legislators should furthermore make an effort to justify the need for the mere viewing offence on the basis of empirical and criminological investigations. Only then the extent of criminalization can be justified by a legitimate purpose.
Finally, the efficacy of prosecuting those who view child pornography does not seem to constitute a useful deterrent instrument in order to fight the child pornography industry. It would be more useful to concentrate efforts on prosecuting the child pornography crimes such as producing and distributing child pornography. ■
NOTES
[1] Finkelhor, David. "Current Information on the Scope and Nature of Child Sexual Abuse.". Future of Children. v4 n2 (Sum-Fall 1994): p31-53. Wortley, Richard; Stephen Smallbone (2006). Situational Prevention Of Child Sexual Abuse, Volume 19 of Crime prevention studies. Criminal Justice Press. p. 192.
[2] Hobbs, Christopher James; Helga G. I. Hanks, Jane M. Wynne (1999). Child Abuse and Neglect: A Clinician's Handbook. Elsevier Health Sciences. p. 328.
[3] Sheldon, Kerry; Dennis Howitt (2007). Sex Offenders and the Internet. John Wiley and Sons. pp. p20. " 'Child pornography is not pornography in any real sense; simply the evidence recorded on film or video tape - of serious sexual assaults on young children' (Tate, 1992, p.203) ... 'Every piece of child pornography, therefore, is a record of the sexual use/ abuse of the children involved.' Kelly and Scott (1993, p. 116) ... '...the record of the systematic rape, abuse, and torture of children on film and photograph, and other electronic means.' Edwards(2000, p.1)"
[4] Akdeniz, Yaman (2008). Internet child pornography and the law: national and international responses. Ashgate Publishing, Ltd. p. 153. ISBN 0-7546-2297-5.
[5] See U.S. Dep't of Justice, Child Exploitation & Obscenity Section (CEOS), http://www.justice.gov/criminal/ceos/childporn.html (last visited 18 Jun. 2010): "Producing child abuse images has now become easy and inexpensive. The Internet allows images and digitized movies to be reproduced and disseminated to tens of thousands of individuals at the click of a button. The distribution and receipt of such images can be done almost anonymously. As a result, child pornography is readily available through virtually every Internet technology (web sites, email, instant messaging/ICQ, Internet Relay Chat (IRC), newsgroups/bulletin boards, and peer-to-peer). The technological ease, lack of expense, and anonymity in obtaining and distributing child pornography has resulted in an explosion in the availability, accessibility, and volume of child pornography".
[6] With regard to the implementation of the offences related to child pornography provided by art. 9 Convention on Cybercrime see PICOTTI L., SALVADORI I., National legislation implementing Convention on Cybercrime: examples of good practice, available at: http://www.coe.int/t/dghl/cooperation/economic-crime/cybercrime/Documents/Reports-Presentations/default_en.asp.
[7] The text of the UN Convention is available at: http://www2.ohchr.org/english/law/crc.htm.
[8] The text of Optional Protocol is available at: http://www2.ohchr.org/english/law/crc-sale.htm.
[9] The text of Rec. (2001) 16 is available at: https://wcd.coe.int/ViewDoc.jsp?id=234247&BackColorInternet=9999CC&BackColorIntranet=FFBB55&BackColorogged=FFAC75.
[10] The text of Cybercrime Convention is available at: http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=185&CM=8&DF=&CL=ENG. By June 2010, 46 States have signed and 16 States have ratified the Convention on cybercrime. The chart of signatures and ratification is available at: http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=185&CM=8&DF=&CL=ENG.
[11] The text of the Framework Decision is available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004F0068:EN:HTML.
[12] The text of the Convention of Lanzarote is available at: http://conventions.coe.int/Treaty/Commun/QueVoulez-Vous.asp?NT=201&CM=8&DF=17/06/2010&CL=ENG. By
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June 2010, 39 States have signed and 5 States have ratified the Convention of Lanzarote. The chart of signatures and ratification is available at: http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=201CM=8&DF=21/06/2010&CL=ENG.
[13] Explanatory Report to the Convention on Cybercrime, 91, available at: http://conventions.coe.int/Treaty/en/Reports/Html/185.htm.
[14] Art. 9, paragraph 2, CoC: "For the purpose of paragraph 1 above, the term "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 ». As provided by the Explanatory Report of the Convention on cybercrime, 101: "the three types of material defined in paragraph 2 for the purposes of committing the offences contained in paragraph 1 cover depictions of sexual abuse of a real child (2a), pornographic images which depict a person appearing to be a minor engaged in sexually explicit conduct (2b), and finally images, which, although 'realistic', do not in fact involve a real child engaged in sexually explicit conduct (2c). This latter scenario includes pictures which are altered, such as morphed images of natural persons, or even generated entirely by the computer".
[15] According to the Report of the European Commission COM (2007) 716, the most Member States have adopted the necessary measures to comply with the provisions of the Framework Decision on fighting sexual exploitation of children and child pornography. The report is available at: http://eur-lex.europa.eu/smartapi/cgi/sgadoc?smartapi!ce lexplus!prod!DocNumber&lg=en&type_doc=COMfinal&an_doc=2007&nu_doc=716.
[16] According to art. 1 Framework Decision: "For the purposes of this framework Decision: (a) "child" shall mean any person below the age of 18 years; (b) "child pornography" shall mean pornographic material that visually depicts or represents: (i) a real child involved or engaged in sexually explicit conduct, including lascivious exhibition of the genitals or the pubic area of a child; or (ii) a real person appearing to be a child involved or engaged in the conduct mentioned in (i); or (iii) realistic images of a non-existent child involved or engaged in the conduct mentioned in (i)".
[17] The text of the Proposal for a new Framework Decision COM (2009) 135 final is available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52000PC0854(02:EN:HTML.
[18] The criminalization of specific preparatory acts can be assimilated to acts of attempt only under special conditions. See the AIDP Resolution on "The expanding forms of preparation and participation", Revue Internationale de Droit Pénal, 3-4, 2009, 557 ff. See also PICOTTI L., General Report on the Expanding forms of preparation and participation, Revue Internationale de Droit Pénal, 3-4, 2007, 405 ff.
[19] Explanatory Report to the Convention, 140, available at: http://conventions.coe.int/Treaty/EN/Reports/Html/201.htm.
[20] Explanatory Report to the Convention, 140.
[21] Art. 600-quater c.p.: "Chiunque, al di fuori delle ipotesi previste dall'articolo 600-ter, consapevolmente si procura o detiene materiale pornografico realizzato utilizzando minori degli anni diciotto, è punito con la reclusione fino a tre anni e con la multa non inferiore a euro 1.549. La pena è aumentata in misura non eccedente i due terzi ove il materiale detenuto sia di ingente quantità".
[22] Art. 600-quater.1 cp.: "Le disposizioni di cui agli articoli 600-ter e 600-quater si applicano anche quando il materiale pornografico rappresenta immagini virtuali realizzate utilizzando immagini di minori degli anni diciotto o parti di esse, ma la pena è diminuita di un terzo. 2. Per immagini virtuali si intendono immagini realizzate con tecniche di elaborazione grafica non associate in tutto o in parte a situazioni reali, la cui qualità di rappresentazione fa apparire come vere situazioni non reali".
[23] Art. 223-24.4 Code Pénal: "Le fait de consulter habituellement un service de communication au public en ligne mettant à disposition une telle image ou représentation ou de détenir une telle image ou représentation par quelque moyen que ce soit est puni de deux ans d'emprisonnement et 30 000 euros d'amende".
[24] Art. 189.2 Código Penal: "El que para su propio uso posea material pornográfico en cuya elaboración se hubieran utilizado menores de edad o incapaces, será castigado con la pena de tres meses a un ano de prisión o con multa de seis meses a dos anos".
[25] Art. 202.3 Código penal: "La misma pena se impondrá a quien reproduzca, almacene, distribuya, venda, compre, arriende, exponga, publicite, transmita, importe o exporte el material a que se refieren los párrafos anteriores". Art. 202-bis Código penal: "Quien almacene, compre, arriende, el material a que se refieren los párrafos anteriores, sin fines de comercialización o distribución se le impondrán de uno a cinco años de prisión y de cien a quinientos días multa. Asimismo, estará sujeto a tratamiento psiquiátrico especializado".
[26] Art. 218 Código Penal: "El que fotografíe, filme, grabe, produzca, divulgue, ofrezca, venda, compre, posea, porte, almacene, trasmita o exhiba, por cualquier medio, para uso personal o intercambio, representaciones reales de actividad sexual que involucre persona menor de 18 anos de edad, incurrirá en prisión de 10 a 20 años y multa de 150 a 1.500 salarios mínimos legales mensuales vigentes".
[27] Art. 24.2 Ley No. 53-07: "La adquisición de pornografia infantil por medio de un sistema de información para uno mismo u otra persona, y la posesión intencional de pornografía infantil en un sistema de información o cualquiera de sus componentes, se sancionará con la pena de tres meses a un ano de prisión y multa de dos a doscientas veces el salario minimo".
[28] Art. 128.2 Código Penal: "Será reprimido con prisión de cuatro (4) meses a dos (2) anos el que tuviere en su poder representaciones de las descriptas en el párrafo anterior con fines inequívocos de distribución o comercialización".
[29] According to Section 163.1(1) 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".
[30] See, e.g., Ala. Code § 13A-12-192(b) (2008); Fla. Stat. § 827.071(5) (2008) Tenn. Code Ann. § 39-17-1003(a)(1)-(2) (2008); Tenn. Code Ann. § 39-17-1003(a)(1)-(2); Va. Code Ann § 18.2-374.1:1; Mass. Gen. L. Ch. 272 § 29c.
[31] S. 160(2) Criminal Justice Act 1988: "Where a person is charged with an offence under subsection (1) above, it shall be a defense for him to prove - (a) that he had a legitimate reason for having the photograph in his possession; or (b) that he had not himself seen the photograph and did not know, nor had any cause to suspect, it to be indecent; or (c) that the photograph was sent to him without any prior request made by him or on his behalf and that he did not keep it for an unreasonable time".
[32] See AKDENIZ Y., Possession and Dispossession: a Critical Assessment of Defense in Possession of Indecent Photographs of Children Cases, Crim. L.R., 2007, 278-280;
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McGLYNN C., RACKLEY E., Criminalizing Extreme Pornography: a Lost Opportunity, Crim L. R., 2009, 255.
[33] McGLYNN C., RACKLEY E., cit., 255.
[34] See Atkins v Director of Public prosecutions and Good-land v Director of Public prosecutions 2000] 2 All E.R. 425. For a comment see AKNEDIZ Y., Possession and Dispossession, cit., 278.
[35] See Atkins v. D. (2000) 1 W.L:R. 1427, Div. Ct.
[36] CA, Case No. 99/01497/Z5, May 26, 2000.
[37] See Smith and Jayson, [2002] EWCA Crim 683: "a person is not guilty of an offence of "making" or "being in possession" of an indecent pseudo-photograph contained in an e-mail attachment if, before he opnes the attachment, "he is unaware that it contains or is likely to contain an indecent image". For a commet AKNEDIZ Y., Case report: "Court of Appeal Clarifies the Law on Downloading Child Pornography from the Web", 2002, 18, Computer Law & Security Report, 433.
[38] S. 160a Sexual Offences Act 2003: "(1). This section applies where, in proceedings for an offence under section 160 relating to an indecent photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time of the offence charged the child and he - (a) were married, or (b) lived together as partners in an enduring family relationship. 2) This section also applies where, in proceedings for an offence under section 160 relating to an indecent photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time when he obtained it the child and he - (a) were married, or (b) lived together as partners in an enduring family relationship. (3) This section applies whether the photograph showed the child alone or with the defendant, but not if it showed any other person. (4) If sufficient evidence is adduced to raise an issue as to whether the child consented to the photograph being in the defendant's possession, or as to whether the defendant reasonably believed that the child so consented, the defendant is not guilty of the offence unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented".
[39] S. 2252(a)(c)(1) USCA.
[40] S. 2252(a)(c)(2) USCA.
[41] With regard to the critics about the possession offence provided by art. 600-quater Italian Penal Code see CADOPPI A., Commento all'art. 600-quater c.p. (Detenzione di materiale pedopornografico) CADOPPI A. (ed.), Commentario delle norme contro la violenza sessuale e contro la pedofilia; IV ed., 2006, 227 ff. With regard to art. 189.2 Spanish Penal Code see ESQUINAS VALVERDE P., El tipo de mera posesión de pornografia infantil en el código penal espanol (art. 189.2): razones para su destipificación, Revista de derecho penal y criminología, n. 18, 2006, 171-228..
[42] See MORILLAS FERNANDEZ D.L., Análisis dogmático y criminológico de los delitos de pornografía infantil: especial consideración de las modalidades comisivas relacionadas con Internet, 2005, 322.
[43] See PASTOR MUNOZ N., Los delitos de posesión y los delitos de estatus: una aproximación político-criminal y dogmática, 2005, 91.
[44] See SCHRÖDER F.C, Pornographieverbot als Darstellerschutz?, ZRP, 1990, 299 ff.; ID., Das 27. Strafrechtsänderungsgesetz - Kinderpornographie, NJW, 1993, 2582 ff.; ID, La posesión como hecho punible, RDPC, 2004, 161.
[45] See PASTOR MUNOZ N., cit., 92; JÄGER G., Irrationale Kriminalpolitik, ALBRECHT P.A., EHLERS A.P.F., LAMOTT F., PFEIFFER C., SCHWIND H.D., WALTER M. (eds.), Festschrift für Horst Schüler-Springorum zum 65. Geburstag, 1993, 233.
[46] SCHRÖDER F.C, Pornographieverbot, cit., 300; PASTOR MUNOZ N., cit., 92.
[47] PASTOR MUNOZ N., cit., 92.
[48] PASTOR MUNOZ N., cit., 95.
[49] SCHRÖDER F.C, Das 27. Strafrechtsänderungsgesetz, cit., 2581 ff.
[50] ECKSTEIN K, Besitz als Straftat, 2001, 80.
[51] See Explanatory Report to the Convention, 98: "The possession of child pornography stimulates demand for such material. An effective way to curtail the production of child pornography is to attach criminal consequences to the conduct of each participant in the chain from production to possession". In the same sense, Explanatory Report to the Convention of Lanzarote, 139. See also GIMBERNAT ORDEIG E., Prologo a la 5a ed del Código Penal, Edit. Tecnos, 2000, 19.
[52] See GIMBERNAT ORDEIG E., cit., 19.
[53] McGLYNN C., RACKLEY E., cit., 252.
[54] ECKSTEIN K., cit., 86 ff.
[55] ECKSTEIN K., cit., 94 ff.
[56] § 2.01(4) Model Penal Code.
[57] MARIN G., Possession of Child Pornography: Should you be Convicted When the Computer Cache does the saving for You?, Florida L. Rev., 2008, 1206.
[58] MARIN G., cit., 1206.
[59] See, e.g., United States v. Kuchinski, 469 F.3d 853. (9th Cir. 2006).
[60] See United States v. Tucker, 305 F.3d 1193 (10th Cir. 2002).
[61] United States v. Tucker, cit.
[62] See MARIN G., cit., 1212.
[63] See Atkins v DPP [2000] 2 Cr. App. R. 248 DC.; United States v. Stulock, 308 F.3d 922 (8th Cir. 2002); United States v. Kuchinski, cit.
[64] In the Italian case law see, e.g., Tribunale Ordinario di Brescia, Sezione II Penale, sent. n. 1619/2004 stating that: "La norma [art. 600-quater c.p.] punendo chi "si procura o dispone" di materiale illecito, e non chi, semplicemente, lo visiona, consente lo svolgimento della pretesa punitiva non nei confronti di tutti coloro che, navigando in internet, "entrino in contatto", semplicemente, con immagini aventi quel contenuto, ma coloro che "se ne approprino", "salvandole" e veicolandole o sul disco fisso del p.c. o su altri supporti, con esso interfacciabili, che ne consentano la visione o comunque la riproduzione. Lo 'scaricamento' dei materiali, ovviamente, deve essere consapevole e volontario, dovendosi escludere profili di responsabilità penale nei casi in cui il materiale rinvenuto sul p.c. costituisca la mera traccia di una trascorsa consultazione del web, creata dai sistemi di salvataggio automatico del personal computer". See also United States v. Stulock, 308 F3d 922 (8th Cir.2002), stating that "one cannot be guilty of possession for simply having viewed an image on a Web site, thereby causing the image to be automatically stored in the browser's cache, without having purposely saved or downloaded the image". Contra MARIN G., cit., 1227 affirming that "seems unreasonable that a person that willingly accessed, viewed, and arguably controlled images of child pornography would not be convicted as a result of his ignorance regarding the workings of computer cahce. This situation is probleatic fro three reasons. First, it encourages willful blindness. Second, it would result in disparate treatment between those choosing to download images from a website and those with enough legal knowledge to undertand that they should view the images without dowbnloading them, even though both have the same control over the image while it is on their screen. Finally, courts' holdings become even more contradictory because many of those who know about a computer's cahce are unlikely to be able to access it".
[65] See United States v. Bass, 411 F.3d 1198 (10th Cir. 2005).
[66] People v. Scolaro 391 Ill. App.3d 671, 910 N.E.2d 126 (Illinois Court of Appeals 2009). For a first comment see BRENNER S., "Evidence Eliminator" and Possession, avail-
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able at: http://cyb3rcrim3.blogspot.com/2009/09/evidence-elimimator-and-possession.html.
[67] R v Porter [2006] EWCA Crim 560.
[68] R v. Clark [2002] EWCA Crim 2925.
[69] R v. Clark [2002] EWCA Crim 2925.
[70] AKNEDIZ Y., Possession and Dispossession, cit" 283.
[71] With regard to the availability of a "deletion offence" to the computer illiterate but not to the knowledgeable see ORMEROD D., Indecent Photographs of a Child, Crim. L. R., 2006, 748, 751.
[72] Nevada Assembly Bill 88, 2009 Nevada Laws Ch. 471.
[73] Art. 227-23. 5 Code Pénal: "Le fait de consulter habituellement un service de communication au public en ligne mettant à disposition une telle image ou representation ou de détenir une telle image ou représentation par quelque moyen que ce soit est puni de deux ans d'emprisonnement et 30 000 euros d'amende".
[74] Explanatory Report to the Convention, 140.
[75] Explanatory Report to the Convention, 140.
[76] See Proposal for a Council Framework Decision on combating the sexual abuse, sexual exploitation of child pornography, COM, (2009), 135 final, Explanatory Memorandum, 6.
[77] See BRENNER S., Viewing Child Pornography as a Crime, available at: http://cyb3rcrim3.blogspot.com/2009/02/viewing-child-pornography-as-crime.html.
[78] The Italian draft bill (DDDL. N. 2326/2009) on ratification of Convention of Lanzatore states that: "L'unico punto su cui la normativa italiana non appare allineata è quello relative al paragrafo 1, lettera f) [della Convenzione di Lanzarote] (accedere consapevolmente, attraverso tecnologie di comunicazione e di informazione, a pornografia infantile), dal momento che il nostro ordinamento punisce solo l'effettiva detenzione di tale materiale, e non il mero accesso. Su tale punto gli Stati Parte possono esprimere riserva: per il nostro Stato, l'esigenza di apporre la riserva discende dai dubbi di costituzionalità di una norma che sanzioni una condotta che potrebbe essere anche del tutto casuale, oltre che dalle difficoltà probatorie di una fattispecie penale che non preveda in qualche modo lo scarico (download) del materiale visionato".
[79] Contra MICHAELS R., Criminal Law - The Insufficiency of Possession in Prohibition of Child Pornography Statutes: Why Viewing a Crime Scene Should Be Criminal, 30 W. New Eng. L. Rev., 2008, 827: "The link between viewing child pornography and sexual molestation is easy to understand in this context. When viewing images is no longer stimulating, the viewer will seek out his own victim".
Lábjegyzetek:
[1] The Author is PhD, Charles University in Prague.
Visszaugrás
