Laws regarding child pornography


Laws regarding child pornography

94 of 187 Interpol member states had laws specifically addressing child pornography as of 2008.[1][2] Of those 94 countries, 58 criminalized possession of child pornography regardless of intent to distribute.[1] This figure does not count legislation outlawing all pornography as being "specific" to child pornography;[1] figures also including non-specific bans on all pornography would therefore be higher if available.

Child pornography laws provide severe penalties for producers and distributors in almost all Western societies, usually including incarceration, with shorter duration of sentences for non-commercial distribution depending on the extent and content of the material distributed. Convictions for possessing child pornography also usually include prison sentences, but those sentences are often converted to probation for first-time offenders.[3] Some nations such as Canada and Australia have laws banning cartoon, manga or written child pornography and others require ISPs (Internet Service Providers) to monitor internet traffic to detect it.[4][5][6]

The United Nations Optional Protocol on the Rights of the Child requires states to outlaw the "producing, distributing, disseminating, importing, exporting, offering, selling or possessing for the above purposes" of child pornography.[7] The Council of Europe's Cybercrime Convention, and the EU Framework Decision that became active in 2006, require signatory or member states to criminalize all aspects of child pornography.[3] Article 34 of the United Nations Convention on the Rights of the Child (UNCRC) stated that all signatories shall take appropriate measures to prevent the exploitative use of children in pornographic performances and materials.

Contents

International treaties

International obligations to pass specific laws against child pornography "punishable by appropriate penalties that take into account their grave nature" as well as enable extradition, mutual assistance in investigation, and seizure of property were mandated by the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography.

Some of the negotiations and reviews of the process took place at the World Congress against Commercial Sexual Exploitation of Children held in 1996 and 2001.[8]

National laws

Australia

The maximum penalty is 10 years jail and/or a $120,000 fine. People have been successfully prosecuted after describing acts of abuse via SMS.[4] Operation Auxin in September 2004 led to the arrest of almost 200 people on charges of child pornography, and "sting" operations are common.

In December 2008, a Sydney man was convicted with possessing child pornography after sexually explicit pictures of children characters from The Simpsons were found on his computer. The NSW Supreme Court upheld a Local Court decision that the animated Simpsons characters "depicted", and thus "could be considered", real people.[9]

Also in March 2011, a Tasmanian man was convicted with possessing child pornography after police investigators discovered an electronic copy of The Pearl by Anonymous on his computer. The Pearl is available for purchase within Australia and published by Harper Collins.[10]

Canada

Canadian law forbids the production, distribution, and possession of child pornography. Prohibitions cover visual representations of sexual activity by persons (real or imaginary) under the age of 18, depiction of their sexual organ/anal region for a sexual purpose, or any written material or visual representation that advocates child pornography offenses against a person under 18. There is an exception for material with artistic merit or an educational, scientific, or medical purpose. The law against simple possession of child pornography was declared void in British Columbia by a 1998 provincial court ruling but this decision was overturned two years later by the Canadian Supreme Court.[11] The high court further concluded that a "person" under the law could be either real or fictional and that the prohibition of written texts was potentially acceptable.[12][13] Cases have now been prosecuted in Canada involving anime and manga child pornography.[5]

Germany

Production and possession are illegal.

India

Child pornography in India is illegal, in February 2009, the Parliament of India passed the Information Technology Bill which made creation and transmission of child pornography illegal. The bill also enables India's law enforcement agencies to take strict action against those seeking child pornography. For example, browsing for child pornography on the internet can lead to a 5 year term in imprisonment and Rs. 1 million fine.[14]

Japan

Child pornography is illegal in Japan since the establishment of the Act on Punishment of Activities Relating to Child Prostitution and Child Pornography, and the Protection of Children in 1999. Providing child pornography to unspecified persons shall be punished up to 5 years of imprisonment with work and/or 5 million yen of fine.

Simple possession including unwanted receiving or holding without intention of distributing is not illegal.

Malaysia

Malaysia does not have specific legislation about child pornography. However, the offense of rape and other forms of child sex abuse are punishable under Section 376 and Section 376B of the Penal Code, as well as the Child Act 2001. The age of consent for sexual activity in Malaysia is 16 years and above for both males and females. [15]

Netherlands

Pakistan

Production and possession are illegal.

Philippines

The Philippines passed Republic Act No. 9775 "Anti Child Pornography Act" in November 2009. The Act outlaws the production, creation, distribution and possession of child pornography. It also places obligations on mall operators and owners of commercial property to ensure that violations of child pornography are not being committed on their premises.

Controversially, the Act also creates obligations on internet-related service providers to ensure child pornography is not being stored or transmitted through their services. The Act requires internet service providers and internet hosting services to employ filtering software and to report child pornography violations within 7 days of discovery. How this obligation is to be implemented is yet to be seen. As of February 2010 the implementing rules and regulations were yet to be released by the National Telecommunications Commission and the Inter-Agency Council Against Child Pornography.

The law also expressly places obligations upon photo developers, information technology professionals, credit card companies, banks and anyone with direct knowledge of child pornography activities to report suspected child pornography materials and transaction within 7 days of discovery.

Prior to the Anti-Child Pornography Act, it was already illegal to use children for pornography and to sell and distribute that material. Under section 9 of Republic Act No. 7610 "Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act", its prohibited to hire, employ, use, persuade, induce or coerce a child into performing for obscene publications or pornographic materials.

In addition, the Anti-Trafficking in Persons Act (Republic Act no. 9208) also outlaws the trafficking of children for the use in pornographic material.

Portugal

Child pornography is statutorily criminalised in the Portuguese Criminal Code (Código Penal Português). The age of sexual content in Portugal is, in principle, 16 years of age. The participation of underage persons in pornographic scenes is subject to stricter standards however because they are subject to the general regime of adulthood, which was set by the Civil Code at the age of 18.

Russia

Possession is not illegal.[citation needed]

Sweden

Presumed illegal prior to 1971. Legal from 1971-1980. Now still illegal. The National Library of Sweden experienced a dispute regarding the alleged collection due to their legal obligation to archive all material printed on Swedish soil.[16][17] This became publicized as activist groups Hand i Hand and Föreningen Anhöriga Till Sexuellt Utnyttjade Barn became involved.[18]

Taiwan

Child and Adolescent Sex Exploitation Prevention Act criminalized the production, broadcast, distribution, exhibition of child pornography. Simple possession of such materials without justifiable cause is punishable by fines.

United Kingdom

In the United Kingdom, it is illegal to take, make, distribute, show or possess an indecent image of a child. In the context of digital media, saving an indecent image to a computer's hard drive is considered to be "making" the image, as it causes a copy to exist which did not exist before.[19] Indecency is to be interpreted by a jury, who should apply the recognised standards of propriety. A child is a person who has not reached the age of 18.

United States

Although child pornography may also be obscene, a legal term that refers to offensive or violent forms of pornography that have been declared by decisions by the US Supreme Court to be outside the protection of the First Amendment regarding free speech,[20] it is defined differently from obscenity. Federal Sentencing Guidelines regarding child pornography differentiate between production, distribution and purchasing/receiving, and also include variations in severity based on the age of the child involved in the materials, with significant increases in penalties when the offense involves a prepubescent child or a child under the age of 12.[21]

See also

References

  1. ^ a b c Child Pornography: Model Legislation & Global Review, 2008
  2. ^ "Child Pornography Not a Crime in Most Countries" (PDF). International Centre for Missing & Exploited Children. 2006. http://www.icmec.org/en_X1/pdf/SummerNewsletter2006formatted.pdf. Retrieved 2010-02-27. 
  3. ^ a b Akdeniz, Yaman (2008). Internet child pornography and the law: national and international responses. Ashgate Publishing, Ltd.. p. 11. ISBN 0754622975. 
  4. ^ a b AFP (2007-07-17). "Queensland man charged over SMS child pornography". http://www.afp.gov.au/media_releases/national/2007/queensland_man_charged_over_sms_child_pornography.html. 
  5. ^ a b Canadian Arrested for Importing Loli-porn Manga (March 4, 2005, Anime News Network). Retrieved June 23, 2008.
  6. ^ REPUBLIC ACT NO. 9775
  7. ^ Article 3, (1)(c)
  8. ^ World Congress against Commercial Sexual Exploitation of Children
  9. ^ "Simpsons cartoon rip-off is child porn: judge". The Age. 2008-12-08. http://www.theage.com.au/national/simpsons-cartoon-ripoff-is-child-porn-judge-20081208-6tmk.html. Retrieved 2009-11-18. "A NSW Supreme Court judge has ruled an internet cartoon in which lookalike child characters from The Simpsons engage in sexual acts is child pornography." 
  10. ^ Tasmanian alderman David Traynor gets child porn conviction for book still sold in Australia The Australian. 2011-03-03. Retrieved 2011-04-7
  11. ^ R v Sharpe (Supreme Court of British Columbia January 13, 1999) (“As s-s.(4) is in violation of s.2(b) of the Charter and is not justified under s.1, s-s.(4) must be and is declared void.”). Text
  12. ^ R v Sharpe (Supreme Court of Canada January 26, 2001) (“The reach of the proscription is further broadened by extending it to the depiction of both real and imaginary persons.”). Text
  13. ^ R v Sharpe (Supreme Court of Canada January 26, 2001) (“...materials that advocate or counsel sexual offences with children may qualify”). Text
  14. ^ Swati Deshpande (2009-02-16). "Browsing child porn will land you in jail". Timesofindia.indiatimes.com. http://timesofindia.indiatimes.com/Browsing-child-porn-will-land-you-in-jail/articleshow/4134097.cms. Retrieved 2009-10-16. 
  15. ^ http://www.interpol.int/public/children/sexualabuse/nationallaws/csamalaysia.pdf
  16. ^ David Landes of Swedish "The Local": Swedish national library in child porn scandal January 21, 2009
  17. ^ KB:s innehav av barnporr kartlagt (Swedish)
  18. ^ Peter Vinthagen Simpson of Swedish "The Local": Swedish national library reported for child porn April 6, 2009
  19. ^ Internet Watch Foundation - R v Bowden http://www.iwf.org.uk/police/page.99.209.htm
  20. ^ "Remarks of Arnold I Burns Before the Florida Law Enforcement Committee on Obscenity, Organized Crime and Child Pornography". NCJ 109133. National Institute of Justice. 1987-12-03. http://www.ncjrs.gov/App/Publications/abstract.aspx?ID=109133. 
  21. ^ Sex Offenses Against Children: Findings and Recommendations Regarding Federal Penalties (as directed in the Sex Crimes Against Children Prevention Act of 1995, Section 6, Public Law 104-71). United States Sentencing Commission. June 1996. pp. p9. http://www.ussc.gov/r_congress/SCAC.HTM. 

External links


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