Cybering, Online Grooming and Ageplay

computer law & security report 24 (2008) 41–55

available at www.sciencedirect.com

www.compseconline.com/publications/prodclaw.htm

Online child protection Cybering, online grooming and ageplay

Sylvia Kierkegaard

International Association of IT Lawyers, Denmark

abstract

Recent advances in computer technology have been aiding sexual predators, stalkers, child pornographers, child trafﬁckers, and others with the intent of exploiting children. Internet bulletin boards, chat rooms, private websites, and peer-to-peer networks are being used daily by paedophiles to meet unsuspecting children. Compounding the problem is the lack of direct governance by an international body, which will curb the illegal content and activity. Most countries already have laws protecting children, but what is needed is a concerted law enforcement and international legislation to combat child sex abuse. With the enactment of the Convention on the Protection of Children against Sexual Exploi- tation and Sexual Abuse, this may soon become a reality in Europe. This current article will discuss some of the recent legal developments concerning online child protection, including the new Convention. ª 2007 Sylvia Kierkegaard. Published by Elsevier Ltd. All rights reserved.

1. Introduction and peer-to-peer networks are being used daily by paedophiles to meet unsuspecting children. The misuse of the Internet for The Internet is a special artefact system that has enormous pornography, cyber bullying, grooming and paedophilia has technical and social positive impacts on modern society. become a major issue of international concern. Because of The online environment enables access to a wealth of infor- the freedom and the anonymous environment offered by the mation and communication across both distance and time. Internet, child molesters and pornographers are increasingly There is a vast amount of data available on virtually every sub- using the Internet to further their criminal activity. ject, making it an effective learning tool. However, it is also a Compounding the problem is the lack of direct governance double-edged sword with negative and positive consequences. by an international body, which will curb the illegal content It has a potential for misuse and has generated societal con- and activity. Because cyberspace has no national boundary, cerns. Today, the danger to children is even greater because each country has to apply its own legislation within its na- the Internet provides anonymity to predators. tional border, creating a disparity in legislations. For example, Recent advances in computer technology have been aiding images which are illegal to view in the USA may not be illegal sexual predators, stalkers, child pornographers, child traf- to view in Germany. Most countries already have laws protect- ﬁckers, and others with the intent of exploiting children. ing children, but what is needed is a concerted law enforce- While they have existed prior to the Internet, the advent of ment and international legislation to combat child sex abuse. the new technology has allowed for easier and faster distribu- With the enactment of the Convention on the Protection of tion of pornographic materials and communication across Children against Sexual Exploitation and Sexual Abuse, this national and international boundaries. The criminals have may soon become a reality in Europe. This current article used the Internet to solicit sexually explicit images of young will discuss some of the recent legal developments concerning people. Internet bulletin boards, chat rooms, private websites, online child protection particularly in Europe, including the

new Convention on the Protection of Children against Sexual There are 4.2 million pornographic websites (12% of total Exploitation and Sexual Abuse. websites). While the United States is the leading porn producing country, majority of the leading producers are based in Europe 2. Internet crimes against children (Netherlands, Germany, Spain and the United Kingdom). 34% Received unwanted exposure to sexual material. The global nature of the Internet, the ease with which illegal 100,000 Websites offer child pornography. materials can be produced in one country, distributed from a 2.5 Billion (8% of total emails) consist of daily pornographic second, moved from one host server to another and accessed/ emails. downloaded in many countries across the world has created The daily Gnutella ‘‘child pornography’’ request is 116,000. a major problem. Amongst others, the risks for children using Sexual solicitations (89%) of youth are made in the chat these features are grooming, disclosure of sensitive personal rooms. information/images, exposure to harmful content (pornog- The number of youths who received sexual solicitation is raphy, sexual speech, violence, etc.) encouragement to one out of seven. harmful behaviour and cyber bullying. Child pornography The average age of first Internet exposure to pornography is and grooming have become a problem of international 11 years old. proportions. The largest consumer of Internet pornography is the 35–49 The production and distribution of child abuse material are age group. facilitated through commercial websites, user generated web- The number of 15–17 years old having multiple hard-core sites and peer-to-peer/file sharing network. Offenders take exposures is 80%. sexual pictures of minors and one can even order a live online The number of 8–16 years old having viewed porn online is molestation of a real child and infant for viewing. The preva- 90%, most while doing homework. lence of home video production facilitates the ease of making The percentage of 7–17 years old who would freely give out and posting sexual images online. Internet sex trading, where home address is 29%. teenagers are offered goods or money in exchange for sexual The percentage of 7–17 years old who would freely give out favours, is on the rise. email address is 14%. The Internet provides another context for the production Children’s character names linked to thousands of porn of child pornography. Child pornography can be defined as links is 268 including Okeman and Action Man. any visual depiction of sexually explicit conduct involving children under the age of 18. Numerous criminal intelligence In Britain, the UK Cybercrime report commissioned by agencies assess that the number of websites showing images online criminology firm 1871 Ltd, suggested that more than of child sexual abuse is on the rise. three million offences were committed online last year. There The extent of child pornography available on the Internet is were 8,50,000 instances of sex crimes – where individuals difficult to determine. Agencies can only estimate the scale of were ‘cyberstalked’ or received unwanted sexual approaches the increase and the figures come mostly from surveys and and paedophiles grooming underage children for sex (AFP, public hotlines where people can report sites with images of 2007a,b). The recent arrest of Tim Cox highlights the extent child abuse and interview. of this malaise. The British police’s infiltration of the chat INHOPE, the International Association of Internet Hotlines, room ‘‘Kids The Light Of Our Lives’’ ran by 27-year-old Tim said monthly trends of processed reports over a 28-month pe- Cox, who called himself the ‘‘Son_of_God’’ was the largest in- riod to December 2006 showed racism and xenophobia grew ternational investigation of its kind. The site allowed paedo- by 33 percent, adult pornography by 24 percent and child por- philes to share images and videos of child sex abuse and nography by 15 percent (AFP, 2007a,b). Substantial increases plans for abusing victims ranging from the age of babies to in racist and pornographic websites were reported on Septem- young teens. The sites have 700 users and allowed trading im- ber 2007 Wednesday by the international watchdog in its first ages, some of which were shocking pictures of children being detailed analysis of illegal activity on the Internet. INHOPE subjected to live abuse shows online. Police found 75,960 inde- hotlines collect reports about illegal and harmful contents in cent images of children on Cox’s computer, and evidence he over 25 countries around the world including members from had supplied 11,491 images to other site users. He arranged the Europe, Asia, North America and Australia. The report says live abuse of youngsters at pre-designated times (Observer, that in the 28 months, the INHOPE network received 900,000 2007). Worldwide, the investigation into the users of ‘‘Kids reports from the general public. There were 160,000 reports the Light of Our Lives’’ has led to the rescue of 31 children forwarded to law enforcement agencies for action, an average from abuse or positions of harm. of 5800 per month. The report said 10,000 reports processed Aside from online child pornography, another issue is the a month, contained child pornography. tactic of grooming, where paedophile criminals contact the The 2006 Internet Filter Review (Ropelato, 2007) reports the children and gain their trust for the purpose of meeting following. them and engaging in sexual behaviour. The Internet enables paedophiles to entice multiple victims at once. For instance, Every second – 28,258 Internet users are viewing the High Court in Edinburgh sentenced Steven Brodie (29) for pornography. 8 years for having sex with two underage girls he met in the The total pornography revenue is $97.06 billion with China chat room. The Court was told that Brodie swapped about being the biggest revenue earner in 2006 ($27.40 billion). 200 text messages and calls with the 13-year-old girl he met computer law & security report 24 (2008) 41–55 43

in a chat room before driving to her Highland home and having have a higher risk of victimization. Young people are particu- sex with her after the victim’s mother left for work. Police later larly vulnerable because they are often not viewed as credible discovered that he later had sex with 15-year-old girl whom he witnesses. A study of teenage blogs published by the Child- met in a chatroom. Lord McPhail said that this is a clear case of ren’s Digital Media Center at Georgetown University revealed the cynical and deliberate grooming exploitation of a child by that two-thirds of teenage bloggers provide their age and first an adult male for sexual purpose (BBC News, 2007). name; 60 percent offer their location and contact information; Aside from chat rooms, grooming is facilitated through and one in five divulge their full name on their sites (Broglio, mobiles, email exchange, blogs and other types of social net- 2005). working sites where children can create their own social con- Predators may form relationships online and then contents and make it accessible to other users. At the same time, vince unsuspecting individuals to meet them in person. In they become targets to predators. June of this year (2007), a 28-year-old American was arrested According to the Pew Internet and American Life Project in Australia over child sex grooming (The Australian, 2007). (Lenhart and Madden, 2007), more than half (55%) of all online He was arrested for using the Internet to groom a person American youths aged 12–17 use online social networking less than 16 years of age for sex. He was caught by a detective sites. The survey defined social networking, sometimes from the Child Exploitation Unit who assumed the identity of referred to as ‘‘friend-of-a-friend’’ sites as an online place where a young girl. In England, the National Crime Squad said it had a user can create a profile and build a personal network that rescued 102 children – as young as two – from paedophiles. connects him or her to other users. According to the report, Many had been repeatedly raped by their own fathers or other such sites have rocketed from a niche activity into a phenom- relatives so that sick pictures could be put on the Internet. enon that engages tens of millions of Internet user. The survey Arrests and convictions for Internet child porn offences have also found that 55% have created online profiles. Fully 85% of more than quadrupled in just 2 years in the United Kingdom. teens who use social networking sites say the profile they use Rock legend Pete Townshend’s name was added on the sex or update most often is on MySpace, while 7% update a profile offender’s register (Manchester Evening News, 2005). on Facebook. More recently, a 46-year-old sex offender, William Mitchell, MySpace and social networking sites like it offer thriving was arrested in Virginia on October 7, 2007. Mitchell is wanted communities where young people engage in countless hours in Alabama on allegations including rape and kidnapping and of photo sharing. (In addition to MySpace, other social net- Florida officials accused him of enticing a Florida girl via the working and blogging sites such as Friendster.com, Facebook. Internet, violating his probation and other allegations (Yahoo com and MyYearbook.com allow users to post pictures, videos, News, 2007). A nationwide manhunt was launched after the and blogs, and they support email and instant messaging.) 15-year-old girl informed her friends that she was going to The two sites are different. MySpace is open to anyone, and elope with a boy she met online. Alyssa ran away just a day has loose age restrictions. Facebook users are encouraged and after a new Florida law took effect, making the state’s sex often required to register using their real name. On MySpace, predator penalties some of the toughest in the nation. people talk by creating profiles: a page on the service’s website The Florida Legislature in April passed the CyberCrimes which can feature a picture, blurb about oneself, a Web log Against Children Act of 2007, which requires sex offenders to (basically, an online diary), and other information. The free register their email addresses and instant-message screen service also features blogs, and instant messages. Users can names with the Florida Division of Law Enforcement. The create their profiles and ask others to exchange materials. law also makes it a second-degree felony for predators to con- The anonymity, availability of extremely sensitive per- tact children online and then attempt to meet them for the sonal information and ease of contacting people make social purpose of sexually abusing them. The law carries a 15-year networking sites a useful tool for online child predators. While prison sentence for soliciting minors for sex and possessing many of the sites have age restrictions, it is possible for child pornography. Penalties have been stiffened for posses- minors to misrepresent their age. To hide their IP addresses sion and distribution of child pornography. The penalty for and locations, they piggyback on Wi-Fi connections or use possession of child pornography was raised from a third-de- proxy servers. Decentralized peer-to-peer networks prevent gree felony to a second-degree felony. Child porn distributors material from being tracked to a specific server, and encryp- will face a first-degree felony. More than 77 million children tion lets them keep online chats private from those policing regularly use the Internet. Florida ranks fourth in the nation the Web. When law enforcement, ISPs and others take down in volume of child pornography, according to the federal Inter- paedophile websites, it does not take them long before they net crimes against children task forces. Nationally, one in ate back and hosted by a different service (Hoover, 2006). seven children from 10 to 17 has been sexually solicited online In March 2006, two men were arrested in the first federal (Orlando Sentinel, 2007). Myspace.com and Florida will share cases involving child predators on MySpace, and federal law en- sex offender data. The partnership already has resulted in forcers shut down a site streaming live sexual abuse of toddlers, about 2000 Florida sex offenders and predators being deleted charging 27 people with child pornography (Hoover, 2006). from Myspace.com. Teenagers are especially vulnerable because they are often trusting, naive, curious, adventuresome, and eager for atten- tion and affection. They are most likely to give information 3. Sex in cyberspace: virtual child porn about themselves, disclose sensitive personal data (including their email addresses and images) and engage in risky behav- Virtual worlds like Second Life are not even immune from iour. Children who may be dealing with emotional problems this problem. According to a report on the Second Life child 44 computer law & security report 24 (2008) 41–55

pornography investigation in the UK newspaper The Guard- In 2002, the US Supreme Court struck down a federal law ian, ‘‘Investigators in the city of Halle are acting on specific banning the possession of images of minors in lascivious information about a German Second Life player, or avatar, who poses that were either Photoshop-altered adults or completely put child pornography images up for sale and paid for sex with computer-generated. In Ashcroft v. Free Speech Coalition, 535 underage players or players posing as minors.’’ (Connolly, U.S. 234, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002), the Supreme 2007). The German, whose avatar or online character – is a Court held that possession of virtual pornography – images 13-year-old girl has also been offering to provide real photos created on a computer without the participation of a real child that contain child pornography to other denizens of the online – cannot constitute a criminal offence. The Court so held even service, ‘‘virtual’’ child pornography is a crime in Germany while recognizing that, as time goes on, it may become more and punishable. Under German law possession of ‘‘virtual’’ and more difficult to distinguish the real from the virtual. child pornography is punishable by up to 3 years in jail in Writing for the majority, Justice Anthony Kennedy said the prison. The law makes little distinction between real and key provisions of the Child Pornography Prevention Act of virtual child pornography. 1996 were ‘‘overbroad’’ and infringed on established protec- The established Second Life practice of so-called ‘‘age tions of material with artistic value that does not violate play’’, in which players request sex with other players who community standards. dress up as child avatars, has encouraged a growth in players Since then, to secure a conviction, prosecutors must prove posing as children in order to make money (Connolly, 2007). that a defendant possessed images of real – not virtual – Age play is an in-world sexual activity between a child avatar children. More recently, in the United States of America v. Rudy and an adult avatar. Sex is an important feature in Second Frabizio (Crim. No. 03-10283-NG), Judge Nancy Gershner ruled Life. Participants in sex in the virtual world – known as ‘‘cyber- on November 11, 2006 and August 11, 2006 that the issue of ing’’ can make their avatars look like anything they want, and whether a photo has been altered in Photoshop or generated create software renderings of whatever equipment they want by computer cannot be determined by mere observation by to use. They even go to the extent of actually purchasing a photographic expert. The main issue in this case focused scripts and making the avatars engage in simulated sex. The on the very technical issue of whether the found images ratio of non-sexual to sexual ageplay is about 50:50, according were computer-generated or whether the images depicted to an interview with a leader in the Second Life ageplay ‘real’ children. The facts of the case are as follow: (http:// community, published on the blog the Second Life Herald in www.jhtl.org/citedworks/U.S.%20v.%20Frabizio.pdf). January (Wagner, 2007). Rudy Frabizio’s employer discovered sexually explicit im- Police in Britain, Belgium and the Netherlands were also ages of minors on Frabizio’s computer and reported this to reported to be considering whether users of ‘‘Second Life’’ the FBI. The Government presented the opinion of two ‘ex- may be committing a crime if their character – known as an perts’. The opinion of the first Government expert, a Dart- avatar – sexually assaults or stalks another. Some users of mouth College professor of computer science who wrote the site claim they are so emotionally involved that attacks a program on how to detect real images but this program on ‘‘their’’ avatars leave them traumatized and upset. They had a 30% error margin and could not provide an exact answer term the experience ‘‘online rape’’ (Smith et al., 2007). In En- as required for criminal cases. The Government second testi- gland, the Criminal Justice and Public Order Act 1994 amended mony was offered by its expert witness Thomas Musheno of the Protection of Children Act 1978 to criminalise ‘‘pseudo- the FBI’s Forensic Audio, Video and Image Analysis Unit photographs’’, defining such as ‘‘an image, whether made by with a claim that Musheno could simply look at each sexually computer-graphics or otherwise howsoever, which appears explicit image and confidently determine if it belongs to to be a photograph. a minor and if it is legal. Musheno concluded that some of Since the Dutch initiated an investigation, Linden Lab has the images depict real children. The defendant contended cracked down on ageplay and other forms of ‘‘broadly offen- that experts cannot know whether a digital image is real or sive’’ behaviour, but its new policy has been criticized as virtual by visual observation alone. Defendant alleged that vague and excessively broad. It has been reported that the Musheno is not a qualified expert and that his testimony can- virtual child pornography has been a criminal offence in the not survive the Court’s gatekeeping function under Daubert v. Netherlands since 2002. However, there is no litigation related Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. to virtual sex with virtual children. With no actual crime or Ed. 2d 469 (1993). abuse case to cite, legislation may prove difficult. On August 11, 2006, Judge Gershner ruled that an expert In Italy, the new law called the ‘‘Provisions on the fight against whose testimony relies on visual observation cannot reliably sexual exploitation of children and on child pornography on the inter- evaluate pictures for signs of computer generation. She noted: net’’ was passed by the Italian Parliament on February 6, 2006. (Interlex, 2007) The new measures are intended to toughen up In a world of rapidly changing technology, where the availability existing legislation and give the police powers to arrest those and use of Photoshop and other, similar programs is widespread, who are responsible for significant amounts of child pornogra- substantial evidence suggests it may be possible to digitally create phy online. They also make provision for the crime of virtual or manipulate photographs in a manner the naked eye cannot de- pornography – photos or video footage developed using a mix tect. Thegovernment has not shown otherwise. Under these circum- of real and unreal images or only graphics. stances, it is unreasonable to expect a lay jury to differentiate the While virtual child porn using avatars is generally consid- real from the computer-generated. The government must therefore ered illegal in the European Union, it might not necessarily present an expert or other extrinsic evidence to prove that the im- be treated as such in the United States. ages in question depict real children. Whether the images in this computer law & security report 24 (2008) 41–55 45

case are real or virtual cannot be determined based on mere obser- Member States also have to inform the Europol of suspected vation, however, even by a photographic expert. More specialized, cases of child pornography. computer-based knowledge is required to exclude the possibility. The European Council enacted Council Framework Decision 2004/68/JHA of 22 December 2003 on combating the The Court confirmed that in order to secure conviction for sexual exploitation of children and child pornography and child pornography, the Government needs to show that the was enacted to harmonise the legislative and regulatory pro- images are not virtual by the usual standards – no more, no visions of the Member States concerning police and judicial less. The judge expressed serious doubts as to whether a per- cooperation in criminal matters with a view to combating traf- son visually studying the images in this case can distinguish ficking in human beings, the sexual exploitation of children real pictures from manipulated or wholly virtual ones with and child pornography. The most salient provisions of the the level of confidence required in a criminal prosecution. Decision are: (Judgement available at: www.law.suffolk.edu/highlights/ stuorgs/jhtl/citedworks/FabrizioII.pdf.) A child is defined as under the age of 18 even though she/he The US Court had earlier noted: has attained a degree of maturity. The age of 18 is also in conformity with the Convention of the Rights of the Child The Government says that the possibility of producing images by (Article 1). using computer imaging makes it very difficult for it to prosecute Child pornography is defined as a (i) real child involved in or those who produce pornography by using real children. Experts, engaged in sexually explicit conduct, including lascivious we are told, may have difficulty in saying whether the pictures exhibition of the genitals or the pubic area of a child; or (ii) were made by using real children or by using computer imaging. a real person appearing to be a child involved or engaged The necessary solution, the argument runs, is to prohibit both in the conduct mentioned; or (iii) realistic images of a non- kinds of images. The argument, in essence, is that protected existent child involved or engaged in the conduct speech may be banned as a means to ban unprotected speech. mentioned. This analysis turns the First Amendment upside down. The Article 2 sets out the behaviour that are punishable: (a) Government may not suppress lawful speech as the means to coercing a child into prostitution or into participating in suppress unlawful speech. Protected speech does not become pornographic performances, or profiting from or otherwise unprotected merely because it resembles the latter. (Ashcroft v. exploiting a child for such purposes; (b) recruiting a child Free Speech Coalition, 535 U.S. at 254–55.) into prostitution or into participating in pornographic performances; (c) engaging in sexual activities with a child, The Government lost the case because it could not prove where (i) use is made of coercion, force or threats, (ii) money that the images apply to real children. This legal loophole or other forms of remuneration or consideration is given as has allowed virtual child porn to flourish under the protection payment in exchange for the child engaging in sexual of the First Amendment freedom of speech. activities, or (iii) abuse is made of a recognized position of trust, authority or influence over the child. Article 3 requires each Member States to take the necessary 4. EU Framework Decision measures to ensure that intentional conducts undertaken by means of computer or nor, when committed without right is pun- In the European Union, the distribution of child sexual abuse ishable: (a) production of child pornography; (b) distribution, material is illegal in most European countries and it is also dissemination or transmission of child pornography; (c) an offence to ask a child to become involved in pornography. supplying or making available child pornography; and (d) In compliance with Article 29 of the Treaty of the European acquisition or possession of child pornography. Union and Article 24 of the Charter of Fundamental Rights, the mission of the European Union is to protect children and Member States can exclude criminal liability where a real adolescents against any infringement on their health and person appearing to be a child was actually 18 years of age psychosocial development. or older at the time of depiction. In the case of production Council Decision of 29 May 2000 to combat child pornogra- and possession of images of children having reached the age phy on the Internet was passed by the European Council to of sexual consent, child pornography is not a criminal offence prevent and combat the production, processing, distribution when the child has given consent. Likewise, when it has been and possession of child pornography on the Internet. The established that the producer has produced the pornographic Member States are obliged to take measures to encourage materials for his own private use and it involves no risk of dis- Internet users to inform law enforcement authorities if they semination, no criminal liability is imposed. suspect that child pornography material is being distributed on the Internet; to ensure that offences are investigated and Instigation of, or aiding or abetting in the commission of punished by setting up specialized units within the law an offence referred to in Articles 2 and 3 are punishable enforcement authorities; and to ensure that the law enforce- (Article 4). ment authorities react rapidly when they receive information Prison sentences for offences defined in Articles 2, 3 and 4 on alleged cases of the production, processing, distribution must at least be between 1 and 3 years (Article 5). and possession of child pornography. In order to facilitate Sentences for certain aggravated offences must be at least cooperation between Member States, a list of 24-h national between 5 and 10 years. These include (a) ‘‘coercing a child contact points and specialized units were disseminated. into prostitution or into participating in pornographic 46 computer law & security report 24 (2008) 41–55

performances’’ and ‘‘profiting from or otherwise exploiting Penal Code prohibits the distribution and possession of mate- a child for such purposes through prostitution’’ and into rial containing child pornography by downloading from Inter- participating in pornographic performances when the vic- net. Anyone who produces obtains or in possession, imports, tim is a child below the age of sexual consent under national transports or exports for the purpose of dissemination or of- law; the offender has deliberately or by recklessness endan- fers, procures, transfers, presents or makes available in any gered the child’s life; the offences involve serious violence other manner to another person a pornographic depiction of or caused serious harm to the child; and the offences are a minor will be sentenced to imprisonment. Pornographic committed in the framework of a criminal organisation depictions of minors are as follows: within the meaning of Joint Action 98/733/JHA. These circumstances represent a minimum list but are without (1) realistic depictions of a sexual act performed on a minor prejudice to additional definition in the legislation of the under 14 years of age or by such minor on himself, on Member States. another person or with an animal; (2) realistic depictions of an event performed with a minor Each Member State must take the necessary measures to under 14 years of age; ensure that a natural person who has been convicted of one (3) examination of which creates the impression, according to of the offences may, if appropriate, be temporarily or perma- the circumstances of the case, that it involves a sexual act nently prevented from exercising professional activities performed on such minor or by the minor on himself, on related to the supervision of children (Article 5(3)). another person or with an animal; and Legal persons can be held liable for an offence referred to in (4) realistic depictions of a sexual act or of an event through Articles 2, 3 and 4 when committed for their benefit by any with minors over 14 years of age, or the genitals or pubic person, acting either individually or as part of an organ of region of minors, provided such depictions are distorted the legal person, who has an authority to take decisions on in a sensational manner, focus on the genitals or pubic behalf of the legal person (Article 6). The sanctions on legal region in order to arouse sexually the observer, and persons include criminal or non-criminal fines, temporary or pictorial representations, an examination of which permanent disqualification from the practice of commercial – following alteration of a depiction or without use of activities, permanent closure of the establishment and a judi- such alteration – creates the impression, according to cial winding-up order. the circumstances of the case, that it is a pornographic Article 8 introduces criteria for conferring jurisdiction. A depiction. State will have jurisdiction where: However, anyone produces, or is in possession of, a porno- the offence is committed within its territory (the principle of graphic depiction of a minor over 14 years of age with the lat- territoriality); ter’s consent or for the latter’s own private use, provided no the offender is one of its nationals (the active personality risk of dissemination of the depiction is associated with the principle); and act will not be punished. the offence is committed for the benefit of a legal person established in the territory of the Member State. 4.1.2. Belgium The distribution of child pornography on Internet is punish- A Member State which, under its laws, does not extradite able under the law of 13 April 1995 on sexual abuse of minors. its own nationals, must take the necessary measures to estab- Article 383bis of the code of criminal law concerns ‘‘emblems, lish its jurisdiction and to prosecute, where appropriate, an objects, films, photographs, slides or other visual media that offence when it is committed by one of its own nationals represent sexual positions or acts of a pornographic nature, outside its territory (Article 8). involving minors’’. The current text suggests that only intentional acts are punishable and include the use of a computer system. The 4.1.3. Cyprus wording of Article 8 implies that a person could be domesti- The age of consent for sexual activity is 17 years of age (Crim- cally prosecuted without regard to the wishes of a State that inal Code chapter 154, Article 154). The age in child pornogra- has sought extradition. At the same time, the words ‘‘where phy legislation is 18 years. The crimes child pornography, appropriate’’ would allow the State not to take action. child prostitution, rape and other forms of child sexual abuse The Framework Decision was to have been implemented in are all covered in the Cypriot legislation in the Convention on the Member States in 2006. Cybercrime, law 22(III)/2004 and the Combating Trafficking in Human Beings and Sexual Abuse of Minors Law, 3(I)/200. 4.1. Summary of legal texts According to x 4(1) of the Combating Trafficking in Human Beings and Sexual Abuse of Minors Law, The following contains a summary of the pertinent applicable legal texts regarding child sex abuse in some European Mem- Whoever, using children for trading purposes, makes, possess, ber States (source: Interpol). carries, imports or exports by any means or circulates documents, printed material, literary works, drawings, paintings, emblems, 4.1.1. Austria photographs, movies or other indecent objects of any kind or The age of simple majority is 18 years. Persons who have not uses any means of publication for the facilitation of the circula- attained 14 years are ‘‘underage’’. Section 207a of the Austrian tion or the trading of the indecent objects commits an offence computer law & security report 24 (2008) 41–55 47

and in case of conviction will be liable to imprisonment not ex- particularly aggravating circumstances are especially in- ceeding ten (10) years. stances where the life of the child is endangered, where gross violence is used, where the child is caused serious Article 9 of the Convention on Cybercrime, law 22(III)/2004 harm, or instances of disseminations of a more systematic makes the following a criminal offence: or organized nature. (2) Any person, who possesses or for a payment becomes (a) producing child pornography for the purpose of its distri- acquainted with obscene photographs or films, other bution through a computer system; obscene visual reproductions or similar of persons under (b) offering or making available child pornography through the age of 18, shall be liable to a fine or to imprisonment a computer system; for any term not exceeding 1 year. The provision in Subsec- (c) distributing or transmitting child pornography through tion (2) does not include possession of obscene pictures of a computer system; a person who has reached the age of 15, if the person has (d) procuring child pornography through a computer system consented to the possession. for oneself or for another person; and (e) possessing child pornography in a computer system or on a computer-data storage medium. 4.1.6. Finland The legal age of consent for sexual activity is sixteen (16) The term ‘child pornography’ includes pornographic mate- years. Article 17, x 18 of the Finnish penal code prohibits the rial that visually depicts (a) a minor engaged in sexually ex- sale, rental, distribution, end manufacturing, importing of pic- plicit conduct; (b) a person appearing to be a minor engaged tures, visual recordings depicting children, violence or bestial- in sexually explicit conduct; and (c) realistic images represent- ity in an obscene way. Section 19 makes it a criminal offence ing a minor engaged in sexually explicit conduct. to have an unlawful possession a photograph, video tape, film or other visual recording, realistically depicting a child having 4.1.4. Czech Republic sexual intercourse or in a comparable sexual act, or depicting The legal age of consent for sexual activity is fifteen (15) years. a child in another obviously obscene way, while Section 20 Article 205 of the Criminal Code contains the following prohibits the unlawful marketing of obscene material. This provisions: includes obscene text.

(1) A person who circulates, distributes, makes open to the 4.1.7. Germany public, produces or imports pornographic written works, The German Criminal Code prohibits abetting child prostitution sound or picture recordings, pictures or other things en- by inducing a person under 18 years of age to commit sexual dangering morality which show disrespect to a man, viola- acts on or in front of a third person for compensation, or tion, sexual intercourse with a child, an animal or other allowing sexual acts to be committed on a person under 18 pathological sexual relations shall be sentenced to impris- years of age by a third person. (German Criminal Code, Section onment for at most 1 year or to fine or the forfeiture of 180(2)). German law further bans facilitating – which includes a thing. supporting or negotiating – sexual acts of a person under 16 (2) A person who (a) offers, lets or makes open to a person un- years of age on or in front of a third person, or sexual acts of der eighteen (18) years of age pornographic written works, a third person on a person under 16 years of age; punishment sound or picture recordings or pictures; (b) displays or by may be up to 3 years imprisonment or a fine. other way makes open to the public pornographic written The German law contains several sexual offence crimes, works, sound or picture recordings or pictures at the place including child sexual abuse. Whoever commits sex acts on which is open to persons under eighteen (18) years of age, a person under fourteen (14) years of age or whoever permits shall be sentenced to imprisonment for at most 1 year, to to do the same to him shall be punished by imprisonment fine or to forfeiture of a thing. (Sections 176, 176a, 176b, 177, 178, 179). The sexual abuse statute includes a provision that prohibits grooming, making it illegal to exert influence on a child by showing him/her por- 4.1.5. Denmark nographic illustrations or images, or by playing pornographic The legal age for sexual intercourse is 15 years. The Danish audio recordings or other sexual speech. legislation does not contain any special provision to govern Under Section 184 of the Criminal Code, disseminating por- online sex abuse. It is covered by the penal code. Sexual inter- nographic materials under circumstances that make them course with any child under the age of 15 is liable to imprison- accessible to persons less than 18 years of age, in other public ment (x 222 of the Danish Penal Code). According to x 235 of the displays, or via radio, is an offence that may be punished with Danish Penal Code: up to 1 year’s imprisonment or a fine. Furthermore, it is illegal to disseminate, publicly display, produce, obtain, supply, (1) Any person, who disseminates obscene photographs or offer, import or export, among other activities, pornographic films, other obscene visual reproductions or similar of materials depicting child sexual abuse. Possessing or under- persons under the age of 18, shall be liable to a fine or to taking to possess for one’s self or a third person, pornographic imprisonment for any term not exceeding 2 years or in materials that depict actual child sexual abuse is an offence. particularly aggravating circumstances to imprisonment Where the pornographic writings have the sexual abuse of for any term not exceeding 6 years. Considered as children as their subject matter, and where they show real 48 computer law & security report 24 (2008) 41–55

or realistic action, the punishment shall be imprisonment. information has been produced, transmitted or conveyed The same punishment shall be imposed on anyone who is in and, without prejudice to the generality of the foregoing, possession of such writings. includes any representation, description or information produced by or from computer-graphics or by any other 4.1.8. Greece electronic or mechanical means but does not include According to Article 121 of the penal code, a minor is consid- (I) any book or periodical publication which has been ex- ered any person aged from eight (8) to eighteen (18) years amined by the Censorship of Publications Board and old, while younger ages, come under the meaning of a child. in respect of which a prohibition order under the Cen- The legal age of consent for sexual activity is fifteen (15) years. sorship of Publications Acts, 1929–1967, is not for the According to the provisions of Article 348A of the Greek Penal time being in force, Code, pornographic material constitutes every depiction, real (II) any film in respect of which a general certificate or or fictitious imprinting, on any material carrier of a minor’s a limited certificate under the Censorship of Films body, intended for sexual excitement, as well as the recording Acts, 1923–1992, is in force, or or imprinting, on any material carrier, of a real, simulated or (III) any video work in respect of which a supply certificate fictitious indecent assault acted for the same purpose by or under the Video Recordings Acts, 1989 and 1992, is in with a minor. It is an offence to gain, prepare, possess, and force; put by any means into circulation pornographic material. ‘‘Visual representation’’ includes – (a) any photographic, 4.1.9. Hungary film or video representation, any accompanying sound or A minor is a person who is over 14 but under 18 years of age any document, (b) any copy of any such representation or doc- (Article 107 of the Penal Code). The age of consent for sexual ument, and (c) any tape, computer disk or other thing on activity is 14 years. Section 195 makes it a criminal offence which the visual representation and any accompanying sound to acquire, keep, distribute, and trade pornographic pictures are recorded. of a minor by video, film, and photograph or by any other The Sections 5 and 6 concern the production, the distribu- means. Pornographic picture or pornographic show is the tion and the possession of child pornography: Section 5 ss(1) act or display of sexuality in a gravely indecent manner of ‘.any person who knowingly produces, distributes, prints or exposure specifically arousing sexual demeanour. publishes any child pornography, knowingly imports, exports, sells, or shows any child pornography, knowingly publishes or 4.1.10. Ireland distributes any advertisement likely to be understood as The legal age at which a person is currently competent to conveying that the advertiser or any other person produces, consent to sexual intercourse is currently seventeen (17) years. distributes, prints, publishes, imports, exports, sells or shows Article 40(6) (1) (i) of the Irish Constitution decrees that ‘the any child pornography, encourages or knowingly causes or publication or utterance of indecent matter is an offence which facilitates any activity mentioned in (a), (b) or (c),or knowingly shall be punishable in accordance with law.’ The Child possesses any child pornography for the purpose of distribut- Trafficking and Pornography Act, 1998 deals specifically with ing, publishing, exporting, selling, or showing it, shall be guilty the matter of child pornography. Section 2 ss(1) defines child of an offence and shall be liable (i) on summary conviction or pornography as: to imprisonment for a term not exceeding 12 months or both, or (ii) on conviction on indictment to a fine or to imprisonment (a) any visual representation for a term not exceeding 14 years or both.’ Section 6 prohibits (i) that shows or, in the case of a document, relates to the possession of child pornography. a person who is or is depicted as being a child and who is engaged in or is depicted as being engaged in ex- 4.1.11. Netherlands plicit sexual activity, Article 240a of the Penal Code makes it a criminal offence to (ii) that shows or, in the case of a document, relates to deliver, distribute or show to a minor, who is manifestly under a person who is or is depicted as being a child and age of 16, a pictorial representation or a data carrier containing who is or is depicted as witnessing any such activity a pictorial representation of an act which is seen to be damag- by any person or persons, or ing to persons under the age of 16. Any person who distributes, (iii) whose dominant characteristic is the depiction, for publicly exhibits, manufactures, imports, conveys in transit, a sexual purpose, of the genital or anal region of a child, exports or possess a pictorial representation of a sexual act (b) any audio representation of a person who is or is repre- involving a person who is manifestly under the age of 18 shall sented as being a child and who is engaged in or is repre- be liable to imprisonment (Article 240b of the Penal Code). sented as being engaged in explicit sexual activity, (c) any visual or audio representation that advocates, encour- 4.1.12. Lithuania ages or counsels any sexual activity with children which is The meaning of ‘‘young child’’ is addressed to an individual an offence under any enactment, or up to 14 years old. Article 162 of the Lithuanian Penal Code (d) any visual representation or description of, or information imposes a fine or imprisonment on any person who uses relating to, a child that indicates or implies that the child is a child for the production of pornographic material. Any per- available to be used for the purpose of sexual exploitation son who produces, acquires, possesses, displays, advertises within the meaning of section 3, irrespective of how or or distributes material of a pornographic nature, where through what medium the representation, description or a child or a person who looks like a child is presented, shall computer law & security report 24 (2008) 41–55 49

be punished by a fine or imprisonment for a term of up to 2 18 (the age of consent in the United Kingdom is still 16). The years (Article 309). definition of child pornography has been changed to also include images of 16 and 17 year olds (s. 45). Sexual grooming 4.1.13. Latvia is addressed in s. 15. The legal age of consent for sexual activity is sixteen (16) years. Article 166 prohibits the importation, production, public (1) A person aged 18 or over (A) commits an offence if demonstration, advertising or other distribution of such por- (a) having met or communicated with another person (B) nographic or erotic materials as relate or portray the sexual on at least two earlier occasions, he abuse of children, bestiality, necrophilia or violence of porno- (i) intentionally meets B, or graphic nature, or the keeping of such materials for similar (ii) travels with the intention of meeting B in any part of purposes. the world, Article 50 of the Protection of the Rights of the Child Law (b) at the time, he intends to do anything to or in respect of ‘‘The Child and Games, Films and Mass Media’’ prohibits B, during or after the meeting and in any part of the giving, selling, renting or promoting. (1) A child toys and video world, which if done will involve the commission by recordings, computer games, newspapers, magazines and A of a relevant offence, other types of publications, in which cruel behaviour, vio- (c) B is under 16, and lence, erotica and pornography are promoted and which (d) A does not reasonably believe that B is 16 or over. pose a threat to the psychological development of a child. (2) (2) In subsection (1) Materials, which promote cruel behaviour, violence, erotica (a) the reference to A having met or communicated with B and pornography and which pose a threat to the psychological is a reference to A having met B in any part of the world development of a child may not be accessible to a child, or having communicated with B by any means from, to irrespective of the form of expression, devices for showing or in any part of the world; and location thereof. In England and Wales, the main legislation on porno- 4.1.14. Poland graphic materials is contained in the Obscene Publications The legal age of consent for sexual activity is fifteen (15) years. Act 1959, the Obscene Publications Act 1964 and the Indecent The recording, importing and possession of child pornography Displays (Control) Act 1981. with a participation of a minor below 15 is a criminal offence (Article 202 x 4 of the Penal Code). Under Article 242, the un- 4.2. Spain lawful preparation for purposes of distribution or advertisement of pornographic materials or objects, and likewise the The age of consent for sexual activity is 13 years. Article 181 of unlawful trade in printed matter, films, or video materials, the Criminal Code concerns the offence of sexual abuse. The depictions or other objects of a pornographic character, are offence is not constituted where there is consent, except punishable by a fine, or by imprisonment. when the acts in question are performed on minors aged under 13, in which event it is held to be constituted whether or 4.1.15. UK not there is consent. The distribution, sale or exhibition of Child pornography is strictly defined by the Protection of Chil- pornographic material to minors by any direct means, includ- dren Act 1978 as amended by the Criminal Justice and Public ing electronic mail, so that the victim is faced directly with the Order Act 1994 makes it an offence to make, take and distrib- material are punishable by six months’ to 1 year’s imprison- ute indecent photographs and pseudo-photographs: ment or a fine of 6–12 months’ salary (Article 186). The offence of pornography consists of: producing, selling, distributing or ‘‘Pseudo-photograph’’ means an image, whether made by com- exhibiting by any means, including the Internet, pornographic puter-graphics or otherwise howsoever, which appears to be material in whose creation minors have been used; and facil- a photograph. If the impression conveyed by a pseudo-photograph itating those activities or possessing pornographic material is that the person shown is a child, the pseudo-photograph shall be for those purposes (Article 189.1 b). treated for all purposes of this Act as showing a child and so shall a pseudo-photograph where the predominant impression 4.3. Sweden conveyed is that the person shown is a child notwithstanding that some of the physical characteristics shown are those of an The age of consent for sexual activity is fifteen (15) years. A adult. References to an indecent pseudo-photograph include (a) person producing or distributing child pornography can be a copy of an indecent pseudo-photograph; and (b) data stored on sentenced to pay a fine or imprisonment for at most 2 years a computer disc or by other electronic means which is capable of according to the Penal Code, Chapter 16, Section 10a (child conversion into a pseudo-photograph. (s. 84) pornography offence). Section 10a of the Swedish Penal Code further states that the person who depicts children in a porno- The Protection of Children Act (c. 37) was also amended by graphic picture, distributes, transfers, shows, puts such a pic- the Police and Justice Act 2006 x 39 and x 40 to contain a provision ture of a child at another person’s disposal or in another way concerning the forfeiture of indecent photographs of children. makes such a picture available for another person, acquires The Sexual Offences Act 2003 (numerous offences related or offers such a picture of a child for sale, procures contacts to grooming, causing child to watch sex acts, causing or incit- between buyers and sellers of such picture of children or takes ing child prostitution or pornography) raised the age from 16– another similar measure with the view to promoting 50 computer law & security report 24 (2008) 41–55

trafficking in such pictures, or has such a picture of children in offences under its domestic law, when committed inten- his possession is convicted of child pornography crime . Child tionally and without right, the following conduct: refers to a person whose puberty development is not com- a producing child pornography for the purpose of its pleted or who, when it appears from the picture or the circum- distribution through a computer system; stance in it, is under the age of 18. The prohibitions of b offering or making available child pornography through depiction and possession do not concern the person who a computer system; draws paints or in another similar craftsman-like way makes c distributing or transmitting child pornography through such picture, the picture is not meant to be distributed, trans- a computer system; ferred, shown or in another way put at other person’s disposal. d procuring child pornography through a computer Also in other cases, an act shall not constitute a crime if special system for oneself or for another person; circumstances make the act obviously justified. e possessing child pornography in a computer system or on a computer-data storage medium. 2 For the purpose of paragraph 1 above, the term ‘‘child 5. International Conventions pornography’’ shall include pornographic material that visually depicts: Several Conventions have been passed to protect the rights of a a minor engaged in sexually explicit conduct; children against sexual abuse. On 20 November 1989, the b a person appearing to be a minor engaged in sexually United Nations General Assembly in New York adopted the explicit conduct; Convention on the Rights of the Child. This international in- c realistic images representing a minor engaged in strument recognizes ‘‘that in all countries in the world, there sexually explicit conduct. are children living in exceptionally difficult conditions, and 3 For the purpose of paragraph 2 above, the term ‘‘minor’’ that such children need special consideration’’. The UN Con- shall include all persons under 18 years of age. A Party vention on the Rights of the Child entered into force 2 Septem- may, however, require a lower age-limit, which shall be ber 1990 and 192 states are parties to this Convention. Article not less than 16 years. 34 provides that the contracting states must undertake to pro- 4 Each Party may reserve the right not to apply, in whole or tect the child from all forms of sexual exploitation and sexual in part, paragraphs 1, sub-paragraphs d and e, and 2, sub- abuse. For these purposes, States Parties shall in particular paragraphs b and c. take all appropriate national, bilateral and multilateral measures to prevent: Liability is imposed only when the person has intent to offer, make available, distribute, transmit, produce or possess (a) the inducement or coercion of a child to engage in any child pornography. However, liability may be imposed on unlawful sexual activity; the service provider if the latter has ‘‘knowledge and control’’ (b) the exploitative use of children in prostitution or other over the information which is transmitted. Being a mere unlawful sexual practices; and conduit or host is not sufficient to make the service provider (c) the exploitative use of children in pornographic perfor- liable. Furthermore, the service provider is not required to mances and materials. monitor the conduct. In many Member States, service providers are obliged to remove illegal contents. This is done The UN Optional Protocol to the Convention on the Rights through notice and takes down procedures by which the of the Child on the sale of children, child prostitution and service provider can pass details of illegal content and poten- child pornography was adopted and ratified in 2002. States tially where it is hosted to law enforcement for action. (67) are party to this Protocol. Article 1 prohibits the sale of In addition, the act may only be considered a criminal of- children, prostitution and child pornography. Child pornogra- fence when committed without right. The term ‘without right’ phy means any representation, by whatever means, of a child allows a Party to the Cybercrime Convention to take into engaged in real or simulated explicit sexual activities or any account fundamental rights, such as freedom of thought, representation of the sexual parts of a child for primarily expression and privacy. In addition, a Party may provide sexual purposes. Article 3(c) strictly prohibits the production, a defence in respect of conduct related to ‘‘pornographic distribution, dissemination, importing, exporting, offering, material’’ having an artistic, medical, scientific or similar selling or possessing child pornography. The offences are merit, or if the person depicted is not a minor. deemed to be included as extraditable offences in any extradi- According to the explanatory report, the possession of tion treaty existing between States Parties and shall be in- child pornography in a computer system or on a data carrier, cluded as extraditable offences in every extradition treaty such as a diskette or CD-Rom, is criminalized. The term ‘‘offer- subsequently concluded between them (Article 5). ing’’ is intended to cover soliciting others to obtain child por- The Council of Europe Cybercrime Convention contains nography. It implies that the person offering the material can a provision dealing specifically with child pornography. actually provide it. The term ‘‘making available’’ includes also Twenty-one states, including the United States, have ratified the creation or compilation of hyperlinks to child pornogra- the Convention. phy. Transmitting is the act of sending child pornography through a computer system to another person. Article 9 – offences related to child pornography The three types of material defined in paragraph 2 for the 1 Each Party shall adopt such legislative and other mea- purposes of committing the offences contained in paragraph sures as may be necessary to establish as criminal 1 cover depictions of sexual abuse of a real child (2a), computer law & security report 24 (2008) 41–55 51

pornographic images which depict a person appearing to be a sometimes required under domestic law and practice in rape minor engaged in sexually explicit conduct (2b), and finally cases in a number of countries. This provision is intended to images, which, although ‘realistic’, do not in fact involve a real provide effective protection against rape and sexual abuse child engaged in sexually explicit conduct (2c). This latter sce- even in the absence of proof of resistance. Victims of sexual nario includes pictures which are altered, such as morphed abuse – in particular, girls below the age of majority – often images of natural persons, or even generated entirely by the failed to resist for a variety of psychological reasons or through computer. fear of further violence from the perpetrator. Paragraph 3 allows Parties to require a different age-limit, The Convention leaves the determination of the legal age provided it is not less than 16 years. of sexual relations to the parties as they vary in the Member States (from 13 to 17 years). Excluded from the criminalized 5.1. The PC-ES Convention activities are consensual sexual activities between minors. Article 19 criminalizes child prostitution when committed The Council of Europe felt that more international safeguards intentionally. are needed to protect the children against sexual exploitation. Article 20 criminalizes child pornography and is similar to Since the Cybercrime Convention dealt only with the issue of the Cybercrime Convention (Article 9), except that it is not re- criminalising pornography, the sixth meeting of the Commit- stricted to child pornography committed by the use of the tee of Experts on the protection of children against sexual computer systems. Furthermore Article 20(1) (f) makes it exploitation and abuse (PC-ES) adopted the draft Convention a criminal offence to knowingly obtain access to child pornog- on the Protection of Children against Sexual Exploitation raphy, through information and communication technolo- and Sexual Abuse. (http://conventions.coe.int/Treaty/EN/ gies. According to the Explanatory Memorandum, ‘‘this is Treaties/Html/ExplChildren.htm) intended to catch those who view child images online by The Convention was opened for signature at the 28th Con- accessing child pornography sites but without downloading ference of European Ministers of Justice, in Lanzarote, on 25 and who cannot therefore be caught under the offence of pro- October 2007. The aim of the Convention is to prevent sexual curing or possession in some jurisdictions. To be liable the exploitation and sexual abuse of children and to protect the person must both intend to enter a site where child pornogra- rights of the child victims. (Article 1) This new Convention is phy is available and to know that such images can be found the first instrument to establish the various forms of sexual there. Sanctions must not be applied to persons accessing abuse of children as criminal offences, as well as the ‘‘groom- sites containing child pornography inadvertently. The inten- ing’’ of children for sexual purposes and ‘‘sex tourism’’. tional nature of the offence may notably be deduced from The Convention is divided into 13 chapters. Measures to be the fact that it is recurrent or that the offences were commit- taken at national level are contained in Chapter 2; specialized ted via a service in return for payment.’’ authorities, chapter 3; protective measures and assistance to Article 20(3) gives the contracting parties the right not to victims, chapter 4; intervention program or measures, chapter criminalise the production or possession of images which 5; substantive criminal law, chapter 6; investigation, prosecu- are simulated representations or realistic images of a non- tion and procedural law, chapter 7; recording and storing of existent child, or involving the children who have reached data, chapter 8; international cooperation, chapter 9; monitor- the legal age for sexual activity where these images are pro- ing mechanisms, chapter 10; relationship with other instru- duced and possessed by them with their consent and solely ments, chapter 11; amendments to the Convention, chapter for their own private use. The article does not prohibit the 12, and final clauses, chapter 13. production of lifelike images of child pornography (where in Article 2 prohibits discrimination in the implementation of reality no child was involved). the Convention. The Convention makes it a criminal offence to recruit Article 3 defines a child as ‘‘under the age of 18’’. It should children for participation in pornographic performances be noted that a different age is specified in particular offences. (Article 21), and criminalizes the intentional causing of a child Sexual exploitation and abuse include all the behaviour below the legal age to witness sexual acts and sexual abuse of listed in Articles 18–23 of the Convention, which concern other children or adults or sexual activities (Article 22). with making certain offences a criminal act. All the offences Article 23 introduces a new offence of ‘‘grooming’’ or solic- represented only minimum rules and parties may establish itation of children for sexual purposes. This has never been stricter rules. Chapter 6 contains the substantive criminal law. addressed in other existing international instruments in the According to Article 18, engaging in sexual activities with field. All the elements of the offence must be committed a child is a criminal offence when done intentionally. The intentionally. In addition, the ‘‘purpose’’ of the proposal to term ‘‘sexual activity’’ is not defined, but is left for the parties meet the child for committing any of the specified offences to define the meaning and scope of the term. The interpreta- needs to be established before criminal responsibility is tion of the word ‘‘intentionally’’ is left to domestic law. Article incurred. Sexual chatting does not constitute an offence. 18 (b) also criminalizes the act of engaging in sexual activities Article 24 requires parties to establish as criminal offences with a child by use of coercion, force or threats, or abuse of aiding or abetting intentionally any of the offences estab- trust, authority or influence over the child. This requires that lished in accordance with the Convention. Member States to prosecute and penalise all non-consensual Article 25 lays down the various requirements whereby acts, even in the absence of physical resistance by the victim. Parties must establish jurisdiction over the offences with Historically, proof of the use of physical force by the perpetra- which the Convention is concerned. Article 25(1) (a) is based tor and physical resistance on the part of the victim was on the territoriality principle while Article 25(1) (d) is based 52 computer law & security report 24 (2008) 41–55

on the nationality principle. Article 25(4) eliminates the rule of ACLU and other plaintiffs filed a lawsuit to strike down the dual criminality where acts must be criminal offences in the law. In February 1999, the Federal District Court in Philadel- place where they are performed. The offences of sexual abuse, phia issued an injunction preventing the Government from child prostitution and child pornography can be tried even if enforcing COPA. That Court held that COPA was invalid they are criminalized in the state in which the offence was because there is no way for Web speakers to prevent minors committed. Parties that refuse to extradite a national have from harmful material on the Web without also burdening the legal ability to undertake investigations and proceedings adults from access to protected speech. On February 1, 1999, domesticallyinstead,ifasked to do so by the Party thatrequested the United States Court of Appeals for the Third Circuit upheld extradition under the principle of aut dedere aut judicare. the injunction and struck down the law, ruling that it was Corporate liability (Article 26): commercial companies, as- too broad in using ‘‘community standards’’ as part of the sociations and similar legal entities (‘‘legal persons’’) are crim- definition of harmful materials. inally liable for criminal actions performed on their behalf by In late February 2001, the Department of Justice filed a peti- anyone in a leading position based on a power of representation for certiorari asking the US Supreme Court to reverse the tion of the legal person; an authority to take decisions on be- decision of the Third Circuit. The US Supreme Court upheld half of the legal person; and an authority to exercise control a lower Court decision enjoining an Internet pornography within the legal person. law because it would overly restrict adults from accessing In- Article 28 contains the list of aggravating circumstances ternet sites they have a legal right to view. The five-member which should be taken into account when determining the majority decision, written by Justice Kennedy, sent the case sanctions, such as acts of torture, gang rape, incest and blood back down to the lower Court for a trial on the merits in order relationship, etc. to, inter alia, update the factual record to reflect current technological developments, account for any changes in the legal landscape, to determine whether Internet content filters are 6. US law more effective than COPA or whether other possible alterna- tives are less restrictive and more effective than COPA and The first federal law concerning child pornography was to evaluate whether technology has changed in the past 5 passed in 1978, and the first laws that specifically referred to years (see Ashcroft v. ACLU, 535 U.S. 564 (2002) at http:// computers and child pornography were passed in 1988. The www.cdt.org/speech/copa/20040629copadecision.pdf). Child Protection and Obscenity Enforcement Act of 1988 The Court held that the Third Circuit was correct to affirm makes it illegal to use a computer to depict or advertise child the District Court’s ruling that enforcement of COPA should pornography. Since that time, there has been a steady tighten- be enjoined because the statute likely violates the First ing of child pornography laws. In 1998, the Child Online Pro- Amendment. tection Act was passed wherein the definition of child More recently, the Federal District Court in Philadelphia pornography was expanded to include virtual images of chil- issued on March 22, 2007 a sweeping rejection of the Child dren and images that appear to be of a minor. The Child Online Protection Act (COPA). In American Civil Liberties Union, Online Protection Act makes it a crime for anyone, by means et al v. Alberto Gonzales (http://www.cdt.org/speech/copa/ of the World Wide Web, to make any communication for com- 20070322copa.pdf), the US District Judge Reed concluded that mercial purposes that is ‘‘harmful to minors’’ unless the per- COPA facially violates the First and Fifth Amendment rights son has restricted access by minors (x 231) The term ‘material of the plaintiffs because: (1) at least some of the plaintiffs that is harmful to minors’ means any communication, have standing; (2) COPA is not narrowly tailored to Congress’ picture, image, graphic image file, article, recording, writing, compelling interest; (3) defendant has failed to meet his bur- or other matter of any kind that is obscene or that den of showing that COPA is the least restrictive, most effective alternative in achieving the compelling interest; and (3) (a) the average person, applying contemporary community COPA is impermissibly vague and overbroad. standards, would find, taking the material as a whole The Court’s decision to permanently enjoin COPA is based and with respect to minors, is designed to appeal to, or is on legal arguments that (1) laws like the CDA and COPA will designed to pander to, the prurient interest; not be effective at protecting kids, (2) those laws will burden (b) depicts, describes, or represents, in a manner patently and chill valuable, fully lawful online content aimed at adults offensive with respect to minors, an actual or simulated and (3) filtering technology, while not perfect, is far more ef- sexual act or sexual contact, an actual or simulated normal fective than COPA and does not violate the First Amendment. or perverted sexual act, or a lewd exhibition of the genitals In 2000, the United States Congress passed the Children’s or post-pubescent female breast; and Internet Protection Act (‘‘CIPA’’ at http://www.ifea.net/cipa. (c) taken as a whole lacks serious literary, artistic, political, or pdf) with the following objective: to assist most schools and li- scientific value for minors. braries in the United States to obtain affordable telecommuni- cations and Internet accesses provided that certain online COPA imposes criminal and civil penalties of up to $50,000 protection measures are followed. It addresses concerns per day for violations. The term ‘minor’ means any person un- about access to offensive content over the Internet on school der 17 years of age. The COPA is more narrowly drafted than its and library computers. This program is commonly known as predecessor, the Communications Decency Act (CDA). COPA ‘E-rate’ program and is found in CIPA, Section 1711. CIPA, Sec- was signed into law on October 21, 1998. (http://www.cdt.org/ tion 1711 imposes certain types of requirements on any school legislation/105th/speech/copa.html) or library that receives funding support for Internet access. computer law & security report 24 (2008) 41–55 53

Section 1711 states that no elementary or secondary school re- images are produced and possessed by them with their con- ceiving Internet and telecommunication access funds from sent and solely for their own private use. The article does the Government may use those funds to obtain computers not prohibit the production of lifelike images of child pornog- to access Internet or pay Internet connection bills unless the raphy (where in reality no child was involved). In spite of this school administration adopts the following measures: (i) it im- omission, Member States are given discretion to criminalise plements Internet safety policies for minors, including tech- morphed images. Overall, the Convention is indeed a step in nological measures, that prevent against access to visual the right direction. The European Union should encourage depictions that are obscene, child pornography, or harmful its Member States to ratify the new treaty. to minors, and (ii) it enforces the operation of those protective The European Union needs to further harmonise its law measures, including technological means, during any use of against sexual abuse and exploitation of children. Although such computers. CIPA expressly defines what obscene, child the European Union has legislated against child pornography pornography of harmful conducts are and disclaims any man- and most Member States have laws prohibiting the sale, pro- date to ‘‘track’’ minors or ‘‘adults’’ use of the Internet. Certifi- duction and distribution of child pornography, harmonization cation of compliance of these measures is required in a yearly is urgently needed in order to combat sexual exploitation and basis. In 2001, the American Liberties Association successfully abuse of children. challenged CIPA in the Court of Appeals for the Eastern Dis- One of the main issues that need to be addressed is written trict of Pennsylvania on the grounds that the law required pornography. Some countries like the Czech Republic con- libraries to unconstitutionally block access to constitutionally sider it a crime, while other Member State’s legislations do protected information on the Internet. However, the Supreme not regard it as illegal. In some published articles, sexual rela- Court upheld the law as constitutional because the need for tionship with toddlers and children is even glorified. In many libraries to prevent minors from accessing obscene materials instances, the writings contain graphic description of the act outweighs the free speech rights of library patrons and web- and invitation to engage in sexual relationship with children. site publishers. Any production, distribution and possession of all materials advocating child sexual abuse should be made illegal across all European Member States. The definition of pornography 7. Harmonizing the law should include text or words. In England, there has been no prosecution on written pornography since the 1976 Inside Child pornography on the Internet, online grooming, cyber- Linda Lovelace trial. ing and online rape are emerging or taking unprecedented More importantly, the definition of child pornography proportions. The leading producers of pornographic websites should include virtual child pornography or pseudo pornogra- are the United States and Russia. The Annual Report of the phy. These images do not use real children, but nevertheless IWF (2007) reported that 54.3% of the material it dealt with have devastating effects. In some countries like Germany, is hosted in the United States and 28.2% hosted in Russia. morphed images and apparent child pornography are illegal, So although Europe is not host to these sites, the illegal con- while this is not the case in others as in Sweden or the United tents are still widely available in Europe. The European States. It is important to include pseudo-images and non-pho- Union should consider how best to engage these countries tographic images (including cartoons and computer-gener- to join international efforts against the sexual exploitation ated images). The discrepancies in the definition of child and abuse of children online. It is difficult to get law enforce- pornography result in major difficulties in the protection of ment in these countries to take effective action against those children from child abuse on the Internet. hosting illegal content. The legal loophole in the US law The law is also inconsistent about what constitutes child allowing virtual child porn to flourish under the protection sexual abuse material. In some countries, a naked photograph of the First Amendment freedom of speech adds further bar- of a child is considered pornographic, while in other states, rier to enhanced cooperation between the EU and the United the prosecutors must prove ‘‘intent to commit the crime.’’ In States. Regina v. Oliver (2002), the Court said that it must be borne in Child exploitation and abuse are international problems mind that, although pseudo-photographs lacked the historical which demand the increased global cooperation and pressure element of likely corruption of real children depicted in on these countries. photographs, pseudo-photographs might be as likely as real The new Convention on the Protection of Children against photographs to fall into the hands of, or to be shown to the Sexual Exploitation and Sexual Abuse is a noble measure to vulnerable and there to have equally corrupting effect. address the growing international concern against sexual ex- A harmonized law must provide a non-exhaustive defini- ploitation and abuse of children both in the real and virtual tion of illegal content. It is currently difficult to determine world. Sexual grooming is outlawed by the new Convention. what constitutes illegal content in various jurisdictions. In What is sadly lacking is the failure of the Convention to some instances, illegal content includes obscene material, include provisions that are future proof – that is, the inclusion without specifying the content. Ultimately, the Court has to of morphed images and writings or all materials that degrade determine what is obscene because of the generality of the the child. For example, Article 20(3) gives the contracting terms. Some countries have more specific laws. For example, parties the right not to criminalise the production or posses- illegal content is well-defined in x 4 of the Interstate Treaty for sion of images which are simulated representations or realis- the Protection of Human Dignity and the Protection of Minors tic images of a non-existent child, or involving the children in Broadcasting and Telemedia (Interstate Treaty on Media who have reached the legal age for sexual activity where these Protection of Minors in Germany). It contains a list which 54 computer law & security report 24 (2008) 41–55

states the content and what conditions they are subject to Since all the Member States of the European Union have al- (www.kjm-online.de/public/kjm/downloads/JMStV.pdf). ready ratified the UN Convention on the Rights of the Child, it In many Member States, grooming is not addressed in the is unacceptable that in some countries the legal frameworks legislation. Legal structures are needed to protect the children concerning child protection are not in place. There have from online abuse. For example, the United Kingdom has been many approaches to harmonization such as the UN Con- strong legislation that makes it illegal to contact and groom vention and the Cybercrime Convention, but they have not children with the intent of committing a sexual offence. yielded any concrete results so far. The Governments have This legislation has resulted in the arrest of several paedo- the obligation to implement relevant law, including appropri- philes and the rescue of many children. Grooming-process ate levels of punishment for acting against the law. in order to abuse a child sexually should be considered crim- The EU must have a common database containing the list inal and included in the EU-legislation. The difficulty in har- of convicted sex offenders and a law must be made to compel monizing the definition of grooming is due partly to the lack them to register their new addresses every time they move to of common definition of an agreed age definition of childhood another place or jurisdiction. for the purpose of protection from sexual exploitation and A central element of the fight against sexual exploitation abuse. For example, in Greece a child is one below the age of of children online has been through the international net- 8, while in other countries, it could be the age of 18. It is impor- work of civilian hotlines where the public can report illegal tant that any harmonized legislation is uniform in defining content and this information is passed to the Interpol. The what a child is. availability of hotlines is an appropriate way to combat illegal Presently, there are cultural problems associated in harmo- content online. One of the most effective hotlines is the In- nizing the law. For example, the legal age for sexual consent ternet Hotline Providers Association (INHOPE); a network of varies from countries to countries. In Spain, the legal age is international Hotlines. For example, On February 26, 2006, 13, while it is 17 in Cyprus. The lack of harmonized age of legal the Internet Watch Foundation (IWF) provided intelligence consent poses the danger that some countries may be vulner- to CyberTipline, its sister Hotline in the United States, able than the others – that is, paedophiles may target coun- regarding a website which appeared to be hosted in the United tries with a lower age-limit for sexual consent. In order to S and contained images of children being sexually abused. avoid loopholes for criminal activities, it would therefore be The website was confirmed to be registered in Wisconsin important, that Member States should have a certain mini- State. The Wisconsin Department of Justice apprehended mum common standard. a suspect who possessed video equipment that he was using Without a harmonized law against sexual exploitation and to record himself sexually assaulting three young children abuse of children, it will be difficult to implement enforce- (CyberTipline, 2007). However, very few of the EU public ment measures across Europe. Legal provisions should con- knows the existence of hotlines and very often do not sider other networks which distribute illegal contents, such know where to report the illegal websites. Crimes should as mobile networks. The European Union must address the actually be dealt by the police, and civilian organizations remaining inconsistencies. The Framework Decision in the should coordinate the activities with them. fight against sexual exploitation of children and child pornog- Cybercopping has also proven to be an effective way to ap- raphy lays down the basis for EU countries, but has not been prehend online criminals. This term refers to the act of offi- effectively implemented by all Member States. One problem- cers patrolling the online world from computers. Some atic of this measure is the exemptions provided in Article 3, countries have agents who police the Internet. They pose as more specifically as follows. In the case of production and children on the Internet and when paedophiles arrange meet- possession of images of children having reached the age of ings with them, they are arrested. The EU must prioritize the sexual consent, child pornography is not a criminal offence creation of Cybercops and enforcement bodies to combat the when the child has given consent. This creates a lacuna. In criminal use of the Internet. The EU should consider how some countries a child is defined as 8 years of age and the best to equip the enforcement bodies and to provide them age of sexual consent could be as low as 13. It is difficult to be- the resources needed to infiltrate the criminals. lieve that a child in that tender age would be mature enough Technical solutions, especially those to prevent distribu- to know the consequences of his actions and to make the tion, play an increasingly important role in the fight against rightful choices. A problem also occurs when a child of 15 the detection and investigation of child abuse images. Pres- has given sexual consent to an adult and this is legal in that ently, the use of efficient image recognition technologies to state; however, conflicts could arise when the child did not identify the children appearing in the child sexual abuse im- consent to their pictures taken together while having sex. ages must be given priority. Filtering software and other tech- Another contentious exemption from criminal liability is the nological solutions can in some cases be helpful to protect possession of child sexual abusive images for personal use. very young children. Age verification is also important. This This is too wide and leaves too much room for discussion. could be done by involving financial institutions in imposing In some jurisdictions, viewing child abuse images on the In- sanctions on those who use a credit card to purchase images. ternet, without downloading them onto a hard drive, is not It is also important that European Internet Service Providers an offence. should have a common database containing the addresses The law must also consider a provision prohibiting or lim- of illegal websites so they can be blocked throughout Europe. iting the exploitation of underage models who are made to Social networking sites must also take the initial initiative pose suggestively in erotic act or wear clothes that barely in putting safeguards. Very often, these social networks only leave anything to the imagination. respond when faced with mounting public pressure. New computer law & security report 24 (2008) 41–55 55

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