Regulating Child Pornography on Computer-Legal Issues
NEERAJ AARORA, AICWA, LLB, PGD (Cyber Law), ACFE (USA)
Child pornography is one of the fastest growing online businesses generating billions of billions US $ each year, thanks to the computer technology which has transformed the production of child pornography into a sophisticated global cottage industry. It is estimated that 100,000 commercial websites offer child pornography and more than 20,000 images of child pornography are posted on the internet every week. In recent years, strong legislative measures have been developed to address this growing problem of Online Child Pornography worldwide. The law addressing online Child Pornography is a remarkably recent legislative invention due to the advent of internet.
The UN Convention of the Rights of the Child (UNCRC) provides a benchmark international legal standard for the protection of children from sexual exploitation. Article 34, among other articles which prohibit the degrading treatment of children, explicitly requires countries to take “all appropriate national, bilateral, and multilateral measures to prevent … the inducement or coercion of a child to engage in any unlawful sexual activity … [and] the exploitative use of children in pornographic performances and materials.” The United Nations Commission on Human Rights’ Programme of Action for the Prevention of the Sale of Children, Child Prostitution and Child Pornography reinforces the UNCRC and international efforts to sanction those who exploit children for pornographic purposes.
Child pornography is a real and pressing problem prevalent today which hurts the very conscience of human being. A review of child pornography legislation promulgated by different countries across the globe reveals an increasing commitment on the part of legislature to the protection of children from pornographic exploitation. Child pornography existed before the creation of the internet but the advent of the Internet has aggravated the epidemic problem and fuelled the further demand for child pornography and expanded an existing market. In view of the computer generated and manipulated child pornography, several countries have passed legislation or amended the existing legislation to give the definition of Child Pornography an extended meaning which includes “simulated” child pornography (where the person depicted may be actually but is obviously disguising himself as a child) or “pseudo” child pornography which can be computer manipulated or computer generated pornography.
Legislative response to address online child pornography:
United States of America
The U.S. is widely considered to be a major consumer of child pornography but it has also been among the most aggressive in enactment and enforcement of strict child pornography laws to deal with perpetrators of child pornography. Congress has made numerous attempts to protect minors from accessing harmful materials online and from virtual child pornography, including the CDA, the CPPA, and COPA.
Communication Decency Act (CDA): The Congress came up with Communication Decency Act (CDA) in an attempt to suppress sexually explicit material. The Act was an attempt to address the problem of hassle free availability of sexually indecent material through internet. This legislation created criminal punishments for publishers who transmitted “‘obscene or indecent’ communications to any recipient under 18 years of age,” or who displayed in a manner available “to a person under 18 years of age, communications that, in context, depict or describe, in terms ‘patently offensive’ as measured by contemporary community standards, sexual or excretory activities or organs. However, the Act was struck down by the Supreme Court precisely because it would have reduced “the adult population” to reading and viewing “only what is fit for children. The Supreme Court declared the Act unconstitutional based being contrary to the first amendment rights.
Child Online Protection Act (COPA): Congress passed the Child Online Protection Act (‘COPA’) in a second attempt to regulate Internet content. The Child Online Protection Act makes it a crime for anyone, by means of the World Wide Web, to make any communication for commercial purposes that are “harmful to minors” unless the person has restricted access by minors by requiring a credit card number. While more narrowly drafted than its predecessor, the Communications Decency Act (CDA), the COPA contains many of the same elements that ultimately led to the Supreme Court’s ruling in 1997 that the CDA was unconstitutional. Thus, COPA put unconstitutional burdens on a wide category of protected speech which forced the Court to declare the law as unconstitutional.
Child Pornography Prevention Act of 1996 (“CPPA”): The Congress passed the Child Pornography Prevention Act of 1996 (“CPPA”) which tried to expand the federal ban on child pornography from pornographic images made using actual children to include computer-generated images appearing to be children engaged in sexually explicit conduct. On April 16, 2002, in Ashcroft v. Free Speech Coalition , the U.S. Supreme Court struck down sections of the CPPA as overbroad and unconstitutional.
Both the CPPA and the COPA were statutes intended by Congress to protect minors. The CPPA was intended to protect minors from the harmful effects of virtual child pornography . The COPA was intended to protect minors from pornography currently available commercially on the World Wide Web. Neither statute currently is being enforced, despite their laudable motives to protect children.
The Children’s Internet Protection Act: This Act passed in 2000, required all public schools and libraries that receive federal technology funds to install filtering software designed to block access to pornographic sites. A coalition of civil liberties groups, led by the American Civil Liberties Union and the American Library Association, argued that filtering software was imprecise and blocked access to Web sites that have nothing to do with pornography. In 2002 a federal judicial panel struck down the Children’s Internet Protection Act, finding that filtering software blocked Web sites whose content was constitutionally protected. However, in 2003 the Supreme Court reversed the lower court and ruled that the law was constitutional and was justified by the government’s legitimate interest in protecting children from harmful materials. The Court noted that the law allowed librarians to enable access to blocked Web sites at the request of patrons, thereby protecting patrons’ First Amendment rights
Protect Act: The Supreme Court of US in May, 2008 finally upheld the latest Congressional effort to curb the spread of child pornography on the Internet, Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT ) Act, a 2003 approved by Congress after the Supreme Court rejected a similar attempt in 2002. Â The Law makes it a crime to offer or solicit sexually explicit images of children. Â The law, known as the Protect Act, applies regardless of whether the material turns out to consist solely of computer-generated images, or digitally altered photographs of adults, or even if the offer is fraudulent and the material does not exist at all. The law at issue was a response to a Supreme Court ruling in 2002, a decision that found unconstitutional an earlier law that prohibited simple possession of purported child pornography even if the material turned out not to depict real children. Under the court’s interpretation of the 2003 statute, a person offering material as child pornography can be convicted on either of two grounds: for believing that the material depicts real children, or for intending to convince a would-be recipient that it does. The law applies to “any person who knowingly advertises, promotes, presents, distributes, or solicits” the prohibited material, raising concerns about whether mainstream movies or innocent photographs of babies in the bath might invite prosecution.
Canada has a very comprehensive child pornography law. Section 163 of the Penal Code makes it a crime to import, produce, print, or publish any child pornography which includes representations of children under 18 who are engaged in or who are depicted as engaged in explicit sexual activity. Furthermore, mere possession of child pornography is also now prohibited in Canada. Section 163 of the penal code can be applied to computer generated child pornography.
Recently, Canada amended the Criminal Code in Bill C-15A (proclaimed on July 23, 2002) and made the following changes to the Criminal Code:
Internet luring and child pornography: It will now be illegal to communicate with a child over the Internet for the purpose of committing a sexual offence against that child.Â Â Each offence will have a maximum penalty of 10 years imprisonment and make it a crime to:
“transmit” child pornography from one person to another;
“make available” child pornography. This law applies when someone posts child pornography material on a web site or offers information on where to find it, for example, by providing a web site address;
“export” child pornography. This provision fulfils Canada’s international obligations under the Optional Protocol to the United Nations Convention on the Rights of the Child, on the Sale of Children, Child Prostitution and Child Pornography; and
“possess child pornography for the purposes of” transmitting, making available or exporting.
Indian Legislative Response to Online Child Pornography
The government recognized the growing menace of Child Pornography and its fast spread like fire due to the advent of internet which is against our very ethos which is based on high ethics and morality. The first legislative response to online obscenity (publication and transmission of obscene material through electronic medium) came in form of Section 67 Information Technology Act, 2000. However, the Section 67 dealt with online obscenity generally which includes child pornography . The said section makes an act of publishing or transmitting or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances , to read, see or hear the matter contained or embodied in it.
The internet has no boundaries and wide availability of Child Pornography material on the internet alarmed the Government. It is said that Child are another form of GOD as they are free from any evil virtues. There was no second thought to the fact that the “Child Pornography” is the worst form of pornography and more heinous than the general pornography. The need was felt to make the Child Pornography a standalone crime and to make stringent punishment to deter the perpetrator of child pornography. Thus, to keep the child away from the evil effect of Child Pornography, it was deemed necessary to amend the Information Technology Act, 2000 to make stringent provision for offence of “Child Pornography”. The proposed amendment in Section 67 has added a Subsection (2), the amended section has made deliberate and intentional act of publishing or transmitting through electronic form any material which relates to child pornography punishable with imprisonment for a term not less than three years and with a fine which may extend to ten lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees. The amended Section has defined “Child Pornography” as any material that features a child engaged in sexually explicit conduct. What would be the “Sexually Explicit Conduct” is however not been defined.
Thus, the would be Indian legislative response to address “Child Pornography” by amendment to the IT Act is a comprehensive one as the definition of “Child Pornography” has wide amplitude as it includes any child pornography from pornographic images made using actual children to include computer-generated images appearing to be children engaged in sexually explicit conduct for example; Animation films depicting child sex.