by CLCM Patabendige
Published on Royal Institute of Colombo Law Journal – Vol III 2022 on 17th November 2022.
ABSTRACT
Sri Lanka has constitutionally and by way of certain legislation guaranteed the rights of children as children must be treasured, nurtured and uplifted in the community since children are the future of the country. Even though there are a plethora of laws and institutes to mitigate and combat child rights violations, laws at certain junctures are insufficient and silent on certain crimes. One such gap and weakness is, the necessity to recognize “child pornography” on the internet as a cybercrime. The research will use this drawback as the research problem. According to Europe’s Cybercrime Convention and some other instruments, Child phonography is already identified as a cybercrime. Therefore, the research questions are the need to recognize child pornography on the internet as a cybercrime, the laws dealing with it, gaps, loopholes and lacuna, and the recommendations. The research has used a doctrinal methodology. To gather findings the researcher has only used non- numerical data. In the end, the paper has successfully attempted to prove and highlight child pornography as an emerging cybercrime on the internet, which needs to be mitigated, combatted and penalized vehemently.
INTRODUCTION
According to Child Right Convention (CRC), Article 1 ‘child’ is defined as, ‘every human being below the age of eighteen years unless, under the law applicable to the child, the majority is attained earlier’. The healthy development of children is crucial to the future well-being of any society. As they are still developing, children are especially vulnerable to poor living conditions such as poverty, inadequate health care, nutrition, safe water, housing and environmental pollution.
According to United Nations International Children's Emergency Fund (UNICEF), child rights matter for various reasons. Children are individuals, they are neither the possessions of parents nor of the state, nor are they mere people-in-the-making; they have equal status as members of the human family.
Secondly, children start life as [completely] dependent beings and they rely on adults for nurture and guidance. When primary adult caregivers cannot meet children's needs, it is up to the State as the primary duty bearer, to find an alternative in the best interests of the child. Thirdly, the action or inaction of the government affects children more strongly than any other group in society. Moreover, views of children should be given priority and considered in the political process. Another point stipulated by UNICEF is that many changes in society are having a disproportionate and often negative, impact on children.
Given the definition, nature and vulnerabilities of children as mentioned above, child abuse happens in various ways including Physical Abuse, Sexual Abuse, Emotional Abuse, Neglect or Maltreatment, Child Trafficking, Commercial Sexual Exploitation of Children (CSEC) (including Child Pornography), Shaken Baby Syndrome and Institutional Abuse or Neglect. These abuses happen online as well as in physical spaces. Child pornography is a crime, which often happens in online spaces, and it ‘includes a wide range of behaviour and situations such as grooming, live streaming, consuming child sexual abuse material and coercing and blackmailing children for sexual purposes’.
At present, the world is wholly digitalized. An individual is capable of walking many miles a day with electronic devices. Wide availability, cost-effectiveness and efficiency have made social media the platform of information. With absolute power over access, defaced hands attempt to infiltrate the privacy of the population endangering national security, which has now expanded to human, cyber, economic, as well as health securities. As a result, children fall prey to sexual predators who commit online sexual exploitation. Even though there are international as well as domestic laws, countering child pornography is not an easy task. Sri Lanka too is in a feeble position to prevent and mitigate child pornography, irrespective of the plethora of laws available. Therefore, the state is duty-bound to severely penalize every person who produces, distributes, accesses, downloads, possesses, conspires, or modifies content relating to child pornography. One of the major problems in Sri Lanka is, child pornography is not recognized as a cybercrime. When perusing other jurisdictions, this is not the case. In light of that, this researcher has attempted to showcase the child pornography on the internet as a cybercrime.
1. LITERATURE REVIEW
According to “Legal Service India- E journal”, pornography can be twofold. ‘Soft core and Hardcore, where the pornography work is referred as the hardcore content and the soft-core pornography consists of nudity or partial nudity in sexual situations. Perhaps, both kinds of pornography involve nudity.’ None of the Sri Lankan statutes define child pornography. This is a major drawback in the Sri Lankan context. The research attempts to showcase the imperativeness of a definition. Further, researcher goes beyond and showcase the importance of recognizing pornography as a cybercrime.
In an interview conducted by (Senarath, 2021) with President Counsel Kalinga Indatissa, the lawyer stated that,
the legal framework of Western countries such as the United Kingdom, determining whether or not pornography is legal is not quite straightforward. There are several laws, regulations and judicial processes that regulate pornography in the UK. There are however, certain categories of pornographic material that are expressly considered illegal. For instance, child pornography, revenge pornography and extreme pornography are illegal.
Unfortunately, in Sri Lanka there is no such division such as child pornography, revenge pornography and extreme pornography. The research has given prominence to recognize child pornography as a cybercrime on the internet.
The Criminal Law of the Republic of Latvia Section 166 provides for ‘punishment for downloading, acquisition, importation, production, public demonstration, advertising or other distribution of such pornographic or erotic materials as relate or portray of the sexual abuse of children’. Yet, in Sri Lanka there is no single piece of legislation explaining to such an extent or interpretation. Therefore, the research looks into the dire need or recognizing child pornography as a cyber crime on the internet.
As stated by The United States Department of Justice (2020) a resultant effect of production of child pornography, creates a permanent record of a child’s sexual abuse. Explaining, when these images of child are placed on the internet and shared , the victimization of the children continues in perpetuity. Both victims and experts agree that victims of child pornography often suffer a lifetime of re- victimization as they know their images of sexual abuse are online forever. These victims of child abuse must live with the permanency, longevity, and circulation of such a record of their sexual victimization. As a result, victims suffer lasting psychological damage, including disruptions in sexual development, self-image, and developing trusting relationships with others in the future. This researcher has identified the repercussions that a child will for face being a victim of child pornography. Taking it in that light, this researcher has attempted to reiterate the need to criminalize child pornography vehemently.
As cited in (Obscenity and indecency: Constitutional principles and federal statutes 2009),
The Internet has given rise to three federal statutes designed to protect minors from sexual material posted on it. The Communications Decency Act of 1996 makes it a crime knowingly to use a telecommunications device (telephone, fax, or e-mail) to make an obscene or indecent communication to a minor, or knowingly to use an interactive computer service to transmit an obscene communication to anyone or an indecent communication to a minor. In 1997, however, the Supreme Court held the inclusion of “indecent” communications in this statute unconstitutional. In 1998, Congress, in response, enacted the less-broad Child Online Protection Act (COPA), but it was also held unconstitutional and never took effect. Finally, the Children’s Internet Protection Act (CIPA), enacted in 2000, requires schools and libraries that accept federal funds to purchase computers or Internet access to block or filter obscenity, child pornography, and, with respect to minors, material that is “harmful to minors.” Filters may be disabled, however, “for bona fide research or other lawful purpose”. In 2003, the Supreme Court held CIPA constitutional.
When looking at these statutes and measures taken by the government, there is a grave fact that Sri Lanka is not even close to recognize child pornography. Therefore, the researcher has looked into the need of criminalizing child pornography and recognizing it as a cybercrime.
2. METHODOLOGY
The research problem is the need to identify child pornography as a cyber- crime. To solve the research problem and answer it, research has utilized the doctrinal method.
Doctrinal legal research methodology, also called "black letter" methodology, focuses on the letter of the law rather than the law in action. Using this method, a researcher composes a descriptive and detailed analysis of legal rules found in primary sources (cases, statutes, or regulations). The purpose of this method is to gather, organize, and describe the law; provide commentary on the sources used; then, identify and describe the underlying theme or system and how each source of law is connected.
Adhering to the norm, research is conducted by using available data. Primary sources such as Penal Code, Child Protection Authority Act, Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography legislation and judicial precedents are equipped to sustain and elaborate on the analysis. The research consists of secondary data such as books, journal articles and conference proceedings.
3. ANALYSIS
3.1. Child Pornography as a Cyber Crime in another jurisdiction
The globe has become a global village, with activities hosted in one jurisdiction accessible to visitors on the internet from another country. However, one of the drawbacks of this technical breakthrough is its use in transmitting information and images that are harmful to children, especially sexual abuse of children, of which child pornography is a crucial component.
The Budapest Convention of Europe aims to strengthen child protection measures against sexual exploitation by criminalizing various aspects of child pornographic electronic production, possession, and distribution.
Complementing the Budapest convention, the Article 20 of The Council of the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, also known as the Lanzarote Convention, is a major step forward in the prevention of sexual offences against children, the prosecution of perpetrators and the protection of child victims.
The Convention makes several references to the use of information and communication technology in the context of child sexual exploitation and abuse. Federal Law in the United States of America defines ‘Child Pornography’ as ‘any visual depiction of sexually explicit conduct involving a minor (persons less than 18 years old)’. ‘Federal law prohibits the production, distribution, importation, reception, or possession of any image of child pornography… child pornography laws are a serious crime, and convicted offenders face fines severe statutory penalties. In US. Chapter 110 of the Code deals with Sexual Exploitation and Other Abuse of Children (18 U.S.C. § 2256 (8)). Depictions include photographs, videos, digital or computer-generated images indistinguishable from an actual minor, and images created, adapted, or modified, but appear to depict an identifiable, actual minor. (18 U.S.C. § 2256 (5)). It is also deemed visual depiction under the Code. (18 U.S.C. § 2256 (5)). ‘Sexually explicit conduct’ under the Code means actual or computer-generated sexual activity of any form or manner whether between same or opposite sex or against the order of nature or involving indecent exposure of any sexual part of any person. (18 U.S.C. § 2256 (2) (a))
The federal law further states that the earlier “sexually explicit conduct”, will also mean sexual intercourse of any form or manner whether between same or opposite sex or against the order of nature or involving indecent exposure of any sexual part of any person. (18 U.S.C. § 2256 (2) (b).) The Code prohibits the production, distribution, reception, and possession of an image of child for pornography. (See 18 U.S.C. § 2251; 18 U.S.C. § 2252; 18 U.S.C. § 2252A.). In particular, Section 2251 prohibits luring of a minor in sexually explicit conduct for purposes of producing visual depictions of that conduct. It is a serious crime to violate the federal child pornography law which attracts stringent penalties. A first-time offender convicted of this crime faces fines and a statutory minimum of 15 years to 30 years maximum term of imprisonment.
United Kingdom’s Criminal Justice Protection of Children Act of 1978 which was amended in 1994 to state that, ‘it is an offence for a person (a) to take, or permit to be taken or to make, any indecent photographs or pseudo photographs of a child; (b) to distribute or show such indecent photographs or pseudo- photographs.’
3.2. Child Pornography in the Sri Lankan context
Child pornography is also seen in Sri Lanka. According to statistics from the Police Child & Women Bureau, 18,000 photographs and videos connected to child porn were posted from Sri Lankan IP addresses between June 17 and July 26.
As stated in (Sri Lanka takes steps to prevent child trafficking 2020) Sri Lanka downgraded to the Tier 2 Watch List status by the U.S. State Department in its 2019 Trafficking in Persons (TIP) report. The TIP report of 2020 has highlighted Sri Lanka’s issues as the exploitation of boys and girls in the commercial sex trade in coastal areas; child labour in small shops, agriculture and informal markets; and children forced to beg or engage in criminal activities in Sri Lanka’s larger cities.
Furthermore, more than 17,000 video clips and photographs related to child pornography which has been uploaded to the internet from Sri Lanka between June and July this year. As per the source, [former] Police Spokesman SDIG Ajith Rohana said the special police unit; the National Centre for Missing and Exploited Children was established last month to monitor the pornographic video clips and photos related to children.
Child Trafficking is an important matter to be discussed since trafficking is done with the intention to do child pornography. ‘There are multiple organizations, such as the Salvation Army that believe due to the exploitative nature of the industry, pornography is also a form of sex trafficking’. Amongst the recent media reports is the incident of trafficking of a 15-year-old for commercial sex work, a 300% increase in cybersex crimes targeting women and children, the arrest of a man who allegedly abused several school girls through the internet, reported abuse of a 13-year-old by her father and other suspects, over 17,000 child pornography videos uploaded to the internet between 17th June and 28th of July 2021 and around 4,000 complaints over child abuse cases and about 48,000 calls on child harassment received at the National Child Protection Authority (NCPA) during the past six months of this year.
The government of Sri Lanka has taken several measures to prevent and mitigate child rights violations and to penalize the offenders rigorously.
Sri Lanka submitted its first report on the Optional Protocol in 2019 in which the UN Child Rights Committee recommended that the government [to] Undertake research on the root causes and extent of the sexual exploitation of boys and girls, including in the context of travel and tourism, and the sale of children, child prostitution and pornography, including online, to identify children at risk, assess the extent of the problem and develop targeted policies and programs. In that regard, protective measures to combat child sexual exploitation should be closely linked with poverty reduction interventions and awareness-raising activities.
Yet, the cases are emerging and trends of abuse are escalating such as seduction and violence involvement. In addition, camera quality and sound effects which are technical advancements result in difficulty to criminalize child pornography.
One of the biggest challenges is that child pornography is not committed by a single criminal; the doer, the facilitator, the conspirator, the person who disseminates, and all the people who engage in the cycle and who profited are guilty. There are various typologies based on theories postulating that sex offenders specialize: such as, Child abusers, Rapists, Females: (co-offender, teacher lover/ heterosexual nurturer, Internet, Crossover and Recent advances: developmental risk factors and offense pathways. Even though perpetrators are punished by sentencing, the traces of the crime and damage done to the child as well as the society are irremediable. The reason is that the victim child is manipulated physically, emotionally and psychologically abused by instilling fear and control. The pornographic content generated and disseminated on the internet can be accessed illegally. Ill- motivated individuals share the said content, and makers, as well as viewers; engage in enjoying the sick crime. None of the resultant crimes can reinstate the victim to a previous position and emancipate them from the mental suffering he/she underwent.
3.3. Gaps, Loopholes and Weaknesses in Law relating to Child Pornography (instead of this topic, change the topic as “Analysis of the laws in Sri Lanka to curb Child Pornography on the internet as a cybercrime”)
3.3.1. Definition of ‘child’
A child is defined as, anyone under 18 years old, according to Child Rights Convention. Similarly, the Sri Lankan Penal Code, Age of Majority (Amendment) Act, No. 17 of 1989, Assistance to and Protection of Victims of Crimes and Witnesses Act (No. 4 of 2015) and Convention on Preventing and Combating Trafficking in Women and Children for Prostitution Act (No. 30 of 2005) sets the age of a child to be under 18 years. Nonetheless, the Children and Young People’s Ordinance (No. 48 of 1939), defines individuals under 14 years of age as ‘children’ for juvenile justice, and children aged 14-16 as ‘young people’. In addition, the Employment of Women, Young Persons and Children Act (No. 46 of 1956) defines a ‘child’ as a person below the age of 14 years and a ‘young person’ as a person aged 14-18 years. This ambiguity and non-uniformity in law is detrimental and can be regarded as a lacuna as penalizing the guilty and defining the victim is a hurdle.
3.3.2. Child pornography
(i). The Children and Young Persons (Harmful Publications) Act No. 48 of 1956
Section 02 of the Act shall apply to every book, magazine or other publication which is of a kind likely to fall into the hands of any child or young person and which consists wholly or mainly of such stories told in pictures, whether with or without the addition of written matter, as portraying (a) the commission of any crime, or (a) the commission of any crime or (b) any act of violence or cruelty, or (c) any incident of a repulsive or horrible nature in such a way that such book, magazine or other publication would tend to corrupt a child or young person into whose hands it might fall. This Act has criminalized obscene pictorial publications, which include child pornography. Nonetheless, the Act has not addressed the virtual domain which is a major drawback. However, as per the Act ‘child’ means a person under fourteen and a ‘young person’ means a person who has attained the age of fourteen and is under the age of sixteen. This is contrary to CRC since the set age is eighteen. Moreover, child porn access should be criminalized irrespective of age and penalized severely.
(ii). Vagrants Ordinance
Section 4 (c) of the ordinance mentions that,
every person willfully indecently exposing himself, or exhibiting any obscene print, picture, or other indecent exhibition, in any street, road, highway, or public place or elsewhere, to the annoyance and disgust of others… shall be liable to be imprisoned with or without hard labour for any period not exceeding one month, or to a fine not exceeding twenty rupees.
However, this Act does not include online exploitation, or audio and digital generated material, which are widespread and accessible. Therefore, it is high time to extend the Act to the virtual space as well, the reason is, independent exposure is mostly done online.
(iii). Penal Code
In 1995 sexual exploitation of children was introduced as a crime under the Sri Lankan Penal Code by section 360B. This is the first ever provision which made exploitation of children as a criminal offence. The Act criminalizes ‘a person who permits a child to be on any premises for the purpose of engaging the child in any kind of sexual activity or pornography will be considered as an offender and shall be convicted and punished with an imprisonment for a period of more than 5 years and less than 20 years.’
As per section, 286A of Sri Lanka’s Penal Code several actions are classified as ‘offences of obscene publication and exhibition relating to children’. Accordingly, any person who,
(a). hires, employs, assists, persuades, uses, induces or coerces any child to appear or perform, in any obscene or indecent exhibition or show, or to pose or model for, or to appear in any obscene or indecent photograph or film of who sells or distributes, or otherwise publishes, or has to his possession, any such photograph or film; Or
(b). being the parent, guardian or person having the custody of a child, causes or allows such child to be employed, or to participate, in any obscene or indecent exhibition or show or to pose or model fur, or to appear in, any such photograph or film, (I) takes, or assists in taking of any indecent photograph of a child; or shall on conviction be punished with imprisonment of either description for a term not less than two years and not exceeding ten years and may also be punished with fine.
As per this section, ‘film’ includes any form of video recording. In addition, a child means a person below the age of eighteen. Sub section 2 (2) states that,
Any person who, being a developer of photographs or films, discovers that any photograph or film given to him for developing is an indecent or obscene photograph or a film of a child, shall, forthwith on such discovery, inform the officer in charge of the nearest police station that he has in his possession, such photograph or film. [Furthermore] whoever being a developer of photographs or films acts in contravention of the provisions of subsection (2) shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.
Although the above sections criminalize the production, distribution and possession of pornographic material, the Penal Code does not define what child pornography is and this can be recognized as a grave lacuna in the law which needs imminent rectification. Further, what acts amount to child pornography as what is ‘indecent’ are undefined in law. Additionally, the Penal Code defines ‘film’ as any form of ‘video recording’. Now the question poses as to why the law is silent on other forms such as writings and audio, digital generated or otherwise. Therefore, the available limitations on ‘video’ give plenty of opportunity to offenders to free their selves from accountability. The Evidence (Special Provisions) Act of 19952 has been enacted in Sri Lanka to provide ‘for the admissibility of audio- visual recordings, and of information contained in statements produced by computers in civil and criminal proceedings. Part I of this Act deals with the admissibility of contemporaneous recordings.
* Ms.Charani Patabendige is a Research Assistant and an Honorary Associate Research Fellow at the Institute of National Security Studies, the premier think tank for the Ministry of Defence Sri Lanka. She is presently reading for MPhil/ PhD in Law. She holds a Bachelor of Laws degree with a second-class and an Advanced Diploma in Transitional Justice from Bandaranaike Centre for International Studies with a Distinction Pass. Currently, she is reading for the final year of the Attorney at Law examination. She is also a member of the committee for the "Review and Finalize the Proposed National Defence Policy". She represented Sri Lanka at the ‘International Scientific-Practical Conference on Regional Security in Asia in the context of preventing new challenges and threats’ conducted by the Conference on Interaction and Confidence Building Measures in Asia (CICA). She has many international and national conferences and journal publications. Her research interests are counter-terrorism, religious extremism, drug menace, human rights and national security.