Reflections on the offence of child pornography through computer systems or other electronic means of communications

Author:Adrian Cristian Moise
Pages:72-79
SUMMARY

Starting from the provisions of the Article 9 of the European Council on Cybercrime and the provisions of the Article 5 of the Directive 2011/92/EU on combating the sexual abuse and sexual exploitation of children and child pornography and the provisions of the Article 20 of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, all referring to offences related to child pornography, this article analyzes the offence of child pornography provided by the Article 374 of the Romanian Criminal Code, focusing on the crime of child pornography committed through computer systems or other electronic means of communications, in order to ensure that the Romanian legislator transposed the provisions of the three legal instruments at international and European level.

 
CONTENT
72 Adrian Cristian Moise
REFLECTIONS ON THE OFFENCE OF CHILD PORNOGRAPHY
THROUGH COMPUTER SYSTEMS OR OTHER ELECTRONIC
MEANS OF COMMUNICATIONS
Adrian Cristian MOISE1
Abstract
Starting from the provisions of the Article 9 of the European Council on Cybercrime
and the provisions of the Article 5 of the Directive 2011/92/EU on combating the sexual
abuse and sexual exploitation of children and child pornography and the provisions of the
Article 20 of the Council of Europe Convention on the Protection of Children against
Sexual Exploitation and Sexual Abuse, all referring to offences related to child
pornography, this article analyzes the offence of child pornography provided by the Article
374 of the Romanian Criminal Code, focusing on the crime of child pornography committed
through computer systems or other electronic means of communications, in order to ensure
that the Romanian legislator transposed the provisions of the three legal instruments at
international and European level.
Keywords: child pornography; information system; pornographic material with
minors; pornographic performance; computer data.
§1. Preliminary considerations
Child pornography differs from other forms of sexual exploitation by the fact
that the victim does not come in direct contact with the consumers of pornographic
material with minors. Victims are used by child pornography offenders to perform
obscenity and lascivious acts, and child pornography offenders produce, record,
store, distribute materials about the victim's activity.
While there is no definition of child pornography unanimously accepted
internationally, there is at least a general consensus that this is a material. The
format of pornographic materials with minors in the online environment is in the
form of digital images.
The content of child pornography, less dangerous, may include images of
children posing nude in provocative poses as well as images of a child's genitals or
pubic area. The pornographic materials with minors may have a much more
1 University Lecturer, PhD, Spiru Haret University of Bucharest, Faculty of Juridical, Economic
and Administrative Sciences, Craiova, Romania; Attorney-at-law, Dolj Bar Association, Romania;
E-mail: adriancristian.moise@gmail.com.
Law Review vol. VII, issue 2, Jul
y
-December 2017, pp. 72-79
Reflections on the offence of child pornography through computer systems... 73
dangerous content, including images of a child who carries out sexual acts with
adults or images of children and adults who have sex with another child. The
extremely dangerous child pornographic materials may include images depicting
children tortured or tormented by different adults who cause them physical injury,
which may even lead to death. Therefore, we can see that the pornographic
materials with minors can be extremely varied.
The pornographic materials with minors can also be done using
pseudo-photographs made using a computer system without involving and
abusing a real child. These pseudo-photographs can be made either by modifying
an image of a real child who doesn't have an explicit sexual behaviour, or can be
completely accomplished using a computer system.
§2. The definition and offences related to child pornography
From a legal point of view, the definition of child pornography may vary from
one jurisdiction to another depending on how national legislation has developed
the legal framework on child pornography. At the European and international
level, the definition of child pornography is provided in the following legal
instruments: Article 2 (c) of the Directive 2011/92/EU2 on combating the sexual
abuse and sexual exploitation of children and child pornography; Article 20 para.2
of the Council of Europe Convention on the Protection of Children against Sexual
Exploitation and Sexual Abuse3 from 2007; Article 9 para.2 of the Council of
Europe Convention on Cybercrime 4
. In Romania, the definition of child
pornography is provided by the provisions of the Article 374 para.4 of the
2 Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on
combating the sexual abuse and sexual exploitation of children and child pornography, and replacing
Council Framework Decision 2004/68/JHA, Official Journal of the European Union, 17.12.2011, L
335/1. The Article 2 (c) of the Directive 2011/92/EU stipulates: “child pornography means: (i) any
material that visually depicts a child engaged in real or simulated sexually explicit conduct; (ii) any
depiction of the sexual organs of a child for primarily sexual purposes; (iii) any material that visually
depicts any person appearing to be a child engaged in real or simulated sexually explicit conduct or
any depiction of the sexual organs of any person appearing to be a child, for primarily sexual
purposes; or (iv) realistic images of a child engaged in sexually explicit conduct or realistic images of
the sexual organs of a child, for primarily sexual purposes”.
3 Council of Europe Convention on the Protection of Children against Sexual Exploitation and
Sexual Abuse (CETS No.201), Lanzarote, 25 of October 2007, Retrieved 10th of November 2017 from:
https://www.coe.int/en/web/children/convention#{%2212441481%22:[2]}; The Article 20 para.2 of
the Council of Europe Convention on the Protection of Children against Sexual Exploitation and
Sexual Abuse stipulates: “child pornography shall mean any material that visually depicts a child
engaged in real or simulated sexually explicit conduct or any depiction of a child’s sexual organs for
primarily sexual purposes”.
4 The European Council Convention on cybercrime. The Article 9 para.2 of the European Council
Convention on cybercrime stipulates: “child pornography shall include pornographic material that
visually depicts: a minor engaged in sexually explicit conduct; a person appearing to be a minor
engaged in sexually explicit conduct; realistic images representing a minor engaged in sexually
explicit conduct”.
74 Adrian Cristian Moise
Romanian Criminal Code In the view of the Romanian legislator, by pornographic
materials with minors it is understood “any material featuring a minor or a major
person as a minor, having an explicit sexual behaviour, or who, while not
presenting a real person, reliably simulates a minor having such behaviour, as well
as any representation of the genital organs of a child for sexual purposes”. We
believe that through pornographic materials with minors may be understood
objects, engravings, photographs, drawings, writings, prints, publications, films,
video and audio recordings, computer programmes and applications, songs and
any other forms of expressing which depict an explicit sexual behaviour with
minors.
The offences relating to child pornography committed through computer
systems or other electronic means of communication are provided by the following
legal instruments at the European and international level in the field of cybercrime:
Article 5 of the Directive 2011/92/EU on combating the sexual abuse and sexual
exploitation of children and child pornography which refers to offences concerning
child pornography, stipulates in para. 3 the offence of knowingly obtaining access,
by means of information and communication technology, to child pornography;
Article 20 of the Council of Europe Convention on the Protection of Children
against Sexual Exploitation and Sexual Abuse which refers to offences concerning
child pornography, stipulates in para.1 (f) the offence of knowingly obtaining
access, through information and communication technologies, to child
pornography; Article 95 from the European Council Convention on cybercrime
which refers to offences related to child pornography committed through a
computer system. In Romania, the offences related to child pornography are
provided by the provisions of the Article 374 of the Romanian Criminal Code:
para.1 of the Article 374 of the Romanian Criminal Code (production, possession,
acquisition, storing, exhibition, promotion, distribution, and making available, in
any way, pornographic materias with minors); para.1¹ of the Article 374 of the
Romanian Criminal Code (impelling or recruiting a child to participate in
pornographic performances, or profiting from or otherwise exploiting a child for
such purposes ); para.1² of the Article 374 of the Romanian Criminal Code
(watching pornographic performances involving minors); para.2 of the Article 374
of the Romanian Criminal Code (the offences provided in the para.1 were
committed through a computer system or other means of storing computer data);
5 The Article 9 from the European Council Convention on cybercrime stipulates: “Each Party
shall adopt such legislative and other measures as may be necessary to establish as criminal offences
under its domestic law, when committed intentionally and without right, the following conduct:
producing child pornography for the purpose of its distribution through a computer system; offering
or making available child pornography through a computer system; distributing or transmitting child
pornography through a computer system; procuring child pornography through a computer system
for oneself or for another person; possessing child pornography in a computer system or on a
computer-data storage medium”.
Reflections on the offence of child pornography through computer systems... 75
para.3 of the Article 374 of the Romanian Criminal Code (access, without right, of
pornographic materials with minors through computer systems or other electronic
means of communications). The offence provided by the Article 374 of the
Romanian Criminal Code is at the limit between the crimes committed with the
help of the computer systems and those committed through the computer systems.
Under the Article 374 para.4¹ of the Romanian Criminal Code, the
pornographic performance refers to “direct exposure to a public, including
through information and communication technology, of a child engaged in a
sexually explicit conduct or of genital organs of a child, for sexual purpose”.
In the Article 181 of the Romanian Criminal Code are defined the notions of
information system and computer data. Information system means “any device or set
of devices interconnected or in functional relation, of which one or more ensure the
automatic processing of data, with the help of an information programme”. At the
same time, according to the Article 35 (1) (d) of the Law no.161/20036 on some
measures to ensure transparency to exercise public dignities, public office and
business environment, prevention and to sanction corruption, in this category is
also included any computer programme which can determine the achieving a
function by an information system.
A minor is defined, in accordance with the provisions of the paragraph 3 of the
Council of Europe Convention on Cybercrime, as any person below the age of
eighteen years, although Member States may require a lower age limit, which may
not be less than sixteen years.
In view of the above, we have noticed that the legal definition of child
pornography does not include all pornographic materials which have as subject
the minors, which an adult who has a sexual interest in minors can take into
account. In order to understand the causes of the commission of child
pornography offences, we must analyze this illegal behaviour beyond the legal
definition of child pornography.
The definition of child pornography from an illegal perspective refers to the
construction of a simple classification system that highlights the characterization of
the content of pornographic materials with minors and provides a discriminatory
approach that indicates the characteristics of such material. This approach helps to
improve our knowledge of the factors that allow and support the offender's
behaviour, as the relationships between illegal behaviour and the child
pornography material become more obvious. Accessing a collection of
photographs showing an adult having a child sexual interest helps to develop a
discriminatory approach for the management of the combat of the offences of child
pornography by the law enforcement bodies. In the literature 7
it was supported
the idea that victimization is the central theme when analyzing the content of a
6 The Romanian Official Gazette no. 279 from the 21st of April 2003.
7 Taylor, Max; Quayle, Ethel (2003). Child Pornography. An Internet Crime, New York: Taylor &
Francis Group, Brunner Routledge, p. 31.
76 Adrian Cristian Moise
pornographic material with minors and when attempting to develop different
descriptive categories. In the case where a pornographic material with minors is
intentionally or accidentally accessed, whenever this material is accessed for sexual
purposes, the minors in that pornographic material become victims through the
perpetrator's fantasy. We therefore consider that minors in pornographic materials
become victims in the online environment, first when is committed and when the
sexual abuse is recorded by the offender, and then they become victims whenever
that recording is accessed in cyberspace.
A classification of different types of pornographic materials with minors is
based on a descriptive analysis of an extensive collection of pornographic materials
with minors, existing in a database, based on a project called COPINE- Combating
Paedophile Information Networks in Europe - developed by the Cork University in
Ireland8. This database contains examples of child pornography materials available
to the public, relying entirely on Internet resources. The researchers in the COPINE
project have made a classification of pornographic materials with minors on ten
levels9 of severity, which differ according to the increase in sexual victimization.
This classification system deliberately includes child pornography materials that
do not fall under any legal definition of child pornography, and in view of this, it is
important to emphasize that these child pornography collections in the COPINE
database, in essence, is not an inappropriate indicator10.
§3. The use of Internet to promote child pornography
Internet contributes to the development of child pornography by increasing
the amount of pornographic materials with minors available in the cyberspace,
through efficient distribution and easy access to these materials. Child
pornography through the Internet poses a number of challenges that traditional
pornographic materials with minors do not have. The Internet gives criminals the
possibility to hide their true identity, thus becoming anonymous, this characteristic
contributing to an increase in the number of consumers of child pornography.
Internet anonymity also allows adults to create different profiles in the online
environment, claiming that they are actually children, making it easier to contact
minors. Online criminals easily use anonymous proxy servers, many of which are
free and located in other countries. Proxy servers allow a single computer system
connected to the Internet to interact with one or more computer systems. Using a
8 Sheldon, Kerry; Howitt, Dennis (2007). Sex Offenders and the Internet, Chichester, West Sussex:
John Wiley & Sons Ltd., p. 46; Wortley, Richard; Smallbone, Stephen (2012). Internet Child Pornography.
Causes, Investigation and Prevention, Santa Barbara, California: ABC-CLIO, LLC, pp. 60-72.
9 Wortley, Richard; Smallbone, Stephen (2012). Child Pornography on the Internet, Community
Oriented Policing Services. U.S. Department of Justice, Problem-Oriented Guides for Police.
Problem-Specific Guides Series No.41, Washington D.C.: Center for Problem-Oriented Policing, Inc.,
pp. 8-9.
10 Taylor, Max; Quayle, Ethel (2003). Child Pornography. An Internet Crime, New York: Taylor &
Francis Group, Brunner Routledge, pp. 31-32.
Reflections on the offence of child pornography through computer systems... 77
proxy server, a person's online criminal activity seems to have been committed by
the proxy server.
Another challenge in addressing the issue of child pornography through the
Internet is that the pornographic material depicting minors with an explicit sexual
behaviour is relatively cheap and easy to produce. The relatively easy Internet
access leads to the increase of abuse of children by creating a demand for new
pornographic materials with minors.
We consider that child pornography through the Internet plays an important
role in the recruitment and control of some victims, not only by determining
minors to believe that having sexual relations between adults and children is a
normal act, but also by using pornographic materials with minors which were
created as a possible blackmail in order to silence the victim.
Child pornography offenders use computer systems both to locate potential
victims and to exchange and distribute pornographic materials that present minors
having an explicit sexual behaviour 11.
We believe that, with the increase in the number of children who frequently
use the Internet, the number of potential victims among children in the online
environment will increase too. Child pornography offenders take advantage of
child-specific naivety by obtaining personal information and developing online
relationships for the purpose of luring them for sexual purposes.
§4. Conclusions
The increased risk of child pornography, as well as the need to ensure
maximum protection of social relations regarding morality, has led the Romanian
legislator to establish a special regime of criminalization and sanctioning of these
violations12. The offence is provided in the Article 374 of the Romanian Criminal
Code in two types of variant, an aggravating variant and two attenuated variants.
It is the type variant, according to para.1 of the Article 374 “the production,
possession, acquisition, storage, exposure, promotion, distribution, and making
available in any way of pornographic materials with minors shall be punishable by
imprisonment from one to five years”. The second type variant is provided by
par.1¹ of the Article 374 and refers to “impelling or recruiting a child to participate
in pornographic performances, or profiting from or otherwise exploiting a child for
such purposes”shall be punishable with the same punishment mentioned above.
11 Loftus, Rebecca Ayers (2008). Disconnecting Child Pornography on the Internet: Barriers and Policy
Considerations, in Forum on Public Policy, No.1, Spring, p. 4; Gercke, Marco (2009). Obligations of
Internet Service Providers with regard to child pornography: legal issues, Council of Europe. Octopus
Interface Conference 2009. Cooperation against Cybercrime, Strasbourg, France, 10-11 March 2009,
Retrieved 10th of November 2017 from: http://www.coe.int/t/dghl/cooperation/economic
crime/cybercrime/cy%20activity%20interface%202009/IF_2009_presentations/defaul t_en.asp,
consultat la 31.08.2015.
12 The Article 374 of the Romanian Criminal Code.
78 Adrian Cristian Moise
It is an aggravating variant, according to the Article 374 para.2 “if the offences
referred to in paragraph (1) have been committed by a computer system or other
means of storing the computer data, the punishment shall be imprisonment from 2
to 7 years”.
It is an attenuated variant, according to the Article 374 para.1² “watching
pornographic performances involving minors is punishable by imprisonment from
3 months to 3 years or by fine”. It is also an attenuated variant, according to the
Article 374 para.3 “the access, without right, of pornographic materials with
minors, through computer systems or other means of electronic communications,
shall be punishable by imprisonment from 3 months to 3 years or by fine”.
According to the judicial practice in this field, the offence of child pornography
committed in the type variants and the aggravated variant may enter the
concurrence of crimes, with the crimes against freedom and sexual integrity only if
the constitutive elements of these crimes are carried out13.
We believe that in order to have child pornography offence it is imperative
that all the normative modalities listed relate to pornographic materials with
minors and pornographic performances. If those essential requirements are not
met, then those actions can not constitute the material element of the child
pornography crime in all the five variants.
As regards the provisions of the Article 374 para.3 of the Romanian Criminal
Code, namely the access, without right, of pornographic materials with minors, through
computer systems or other electronic means, we consider that the legislator should
have explained the situations when the pornographic materials with minors are
being accessed with right, and to specify the categories of persons who can legally
access the pornographic materials with minors.
Following the analysis we made, we noticed that the provisions of the Article 9
(offences related to child pornography) from the European Council Convention on
cybercrime have been transposed into the Article 374 of the Romanian Criminal
Code. We believe that the offence provided by the Article 374 of the Romanian
Criminal Code is at the limit between the crimes committed with the help of the
computer systems and those committed through the computer systems.
We have noticed that the European Council Convention on cybercrime has not
defined all of the key terms used in the Article 9, but preferred to define them later
in the the Explanatory Report to the Convention on Cybercrime. Such a key term is
also the explicit sexual behaviour which was not defined in the Council of Europe
Convention on Cybercrime, nor in Law no.161/2003 and the Romanian Criminal
Code.
The text of the Article 374 of the Romanian Criminal Code also adapted to the
provisions of the Article 5 (offences concerning child pornography, in para.3 is
13 Dobrinoiu, Vasile; Neagu, Norel (2011). Drept penal. Partea special. Teorie şi practic judiciar,
Bucharest: Universul Juridic Publishing House, p. 751.
Reflections on the offence of child pornography through computer systems... 79
stipulated the offence of knowingly obtaining access, by means of information and
communication technology, to child pornography) from the Directive 2011/92/EU
on combating the sexual abuse and sexual exploitation of children and child
pornography, as well to the provisions of the Article 20 (offences concerning child
pornography, in para.1 (f) is incriminated the offence of knowingly obtaining
access, through information and communication technologies, to child
pornography) from the Council of Europe Convention on the Protection of
Children against Sexual Exploitation and Sexual Abuse of the year 2007.
References
1. Dobrinoiu, Vasile; Neagu, Norel (2011). Drept penal. Partea special. Teorie şi
practic judiciar, Bucharest: Universul Juridic Publishing House, in Romanian.
2. Gercke, Marco (2009). Obligations of Internet Service Providers with regard to
child pornography: legal issues, Council of Europe. Octopus Interface Conference
2009. Cooperation against Cybercrime, Strasbourg, France, 10-11 March 2009.
3. Loftus, Rebecca Ayers (2008). Disconnecting Child Pornography on the
Internet: Barriers and Policy Considerations, in Forum on Public Policy, No.1, Spring.
4. Sheldon, Kerry; Howitt, Dennis (2007). Sex Offenders and the Internet,
Chichester, West Sussex: John Wiley & Sons Ltd.
5. Taylor, Max; Quayle, Ethel (2003). Child Pornography. An Internet Crime,
New York: Taylor & Francis Group, Brunner Routledge.
6. Wortley, Richard; Smallbone, Stephen (2012). Internet Child Pornography.
Causes, Investigation and Prevention, Santa Barbara, California: ABC-CLIO, LLC.
7. Wortley, Richard; Smallbone, Stephen (2012). Child Pornography on the
Internet, Community Oriented Policing Services. U.S. Department of Justice,
Problem-Oriented Guides for Police. Problem-Specific Guides Series No.41,
Washington D.C.: Center for Problem-Oriented Policing, Inc.
8. Directive 2011/92/EU of the European Parliament and of the Council of 13
December 2011 on combating the sexual abuse and sexual exploitation of children
and child pornography, and replacing Council Framework Decision 2004/68/JHA.
9. Council of Europe Convention on the Protection of Children against Sexual
Exploitation and Sexual Abuse (CETS No.201), Lanzarote, 25 of October 2007.
10. The European Council Convention on cybercrime.
11. The Romanian Criminal Code.
12. Law no.161/2003on some measures to ensure transparency to exercise
public dignities, public office and business environment, prevention and to
sanction corruption.