What is the justification for criminalising virtual child pornography? The “indirect harm” approach in the UK is contrasted with the USA's protection of free speech
Government has an undeniable interest in protecting children from sexual abuse and exploitation.(1) This – in accordance with the Mill harm principle that power is only rightfully exercised to prevent harm to others – supports the criminalisation of child pornography.(2) However, this justification becomes slightly murky when such images fall within the realm of virtual child pornography (VCP), where no child will have been directly harmed.(3) Accordingly, the reason for criminalisation becomes one that principally concerns indirect harm, since there can be no “virtual” victim.(4)
This paper will highlight the problems that a broad definition of VCP can have on the effectiveness of the law: this will be achieved through an examination of the US position, which has been shaped by Ashcroft v Free Speech Coalition(5) where the court relied on Brandenburg v Ohio(6) to advocate that the “mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it”(7) and, additionally, “VCP is not intrinsically related to the sexual abuse of children”.(8) This justifies the argument that VCP is lawful and hence protected under the First Amendment of the US Constitution.(9) The UK position differs, however, by criminalising VCP.(10) The paper will juxtapose the two approaches with the aim of highlighting that the UK position offers a better understanding of the legal, ethical and social issues surrounding VCP which, as will be argued, justifies its criminalisation.
US overview: a narrower definition required
The international law has struggled to define what child pornography is, which highlights the difficulty involved when defining VCP.(11) Indeed, the court in Ashcroft recognised the need for clarification and took the opportunity to determine the constitutionality of banning VCP.(12) Accordingly, the court addressed the constitutional legitimacy of the Child Pornography Prevention Act 1996 (CPPA)(13), which defined child pornography as the visual depiction of a child that “appears to be of a minor engaging in sexually explicit conduct”.(14) This definition gave rise to the rationalisation that VCP is also worthy of criminalisation. In order to justify this, the Government partly relied on the principles set out in New York v Ferber,(15) which banned the “distribution” of child pornography on the grounds that it caused harm to children. The same reasoning was then extended to criminalise the “possession” of child pornography.(16) Accordingly, the CPPA stretched these principles to legally justify the criminalisation of VCP.
Section 2256(8)(B) of the CPPA stated that “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture that is, or appears to be, of a minor engaging in sexually explicit conduct” is prohibited. The legislature felt that it could lawfully limit free speech if it is in the interests of protecting public morality, which is a classic utilitarian approach to governance.(17) Additionally, the US Congress found that paedophiles might use VCP to encourage children to partake in sexual activity.(18) It also cited studies that concluded that VCP expands the distribution of abusive images, which leads to an increase in the “sexual abuse and exploitation of actual children”.(19)
Preventing the exploitation of children is wholly justifiable, but the problem with the CPPA is it limited speech that is not obscene under Miller v California,(20) whilst extending the harm rationale beyond New York v Ferber(21) and Osbourne v Ohio.(22) The legal basis of the act was therefore questionable since it threatened legitimate free speech.(23) In the well known case of Reno v American Civil Liberties Union,(24) for instance, the court found that society might find speech insulting but that is no reason for stopping it.(25) Furthermore, the CPPA criminalised speech despite its “literary, artistic, political, or scientific value”(26), which is fundamentally unconstitutional. This notion underpins American democracy and is tangled with the appreciation that the First Amendment not only protects speech that society finds “moderately” acceptable, but also protects the unpleasant speech that can grossly offend.(27) Such reasoning is what led to the court in Ashcroft overturning the CPPA, with Justice Kennedy highlighting that the First Amendment claims that “Congress shall make no law… abridging the freedom of speech”(28), and that imposing criminal penalties on protected speech amounts to “speech suppression”(29). It is suggested, however, that if the CPPA had been more precise on what exactly VCP is, the court in Ashcroft might have upheld its legitimacy.
The UK, for instance, recognised that there was a legislative gap that allowed VCP to fall through the legal safety net.(30) Unlike the US, however, the UK provided a narrower account of it and had consultations, conducted in the Home Office Consultation on the Possession of Non-Photographic Visual Depictions of Child Sexual Abuse.(31) It is necessary, therefore, to investigate the UK position in considerable detail, which will illustrate its approach to criminalising VCP.
The UK approach: a detailed investigation
The consultation paper described VCP as “Cartoons, drawings, computer generated images (CGI) and other non-photographic representations”,(32) which is slightly narrower than the approach taken in the CPPA.(33) The consultation paper noted that police were unable to prosecute because a suspect was only in possession of drawings and digital depictions rather than pseudo-images or real photographs.(34) However, this paper is not concerned with pseudo-images or real photographs since these can more easily be said to effect a direct harm.(35) Additionally, the Coroners and Justice Act 2009 (CJA) effectively renders any distinction obsolete since both can now be criminalised.(36)
The consultation paper outlined similar observations to the US Government by arguing that VCP can be used to groom children and, secondly, it fuels the abuse of real children by supporting paedophilic feelings towards children.(37) That said, it is important to note that there is no empirical evidence that VCP leads to actual abuse. This might not matter, however, since VCP is depicting the abuse of the powerless and – in accordance with the Kantian account of liberalism – the state can justify the criminalisation of VCP on the grounds that it is preventing a “cultural sanctioning” from occurring.(38) In other words, if VCP were legal, it might begin to shape cultural norms; this would then blend into the way people perceive children, which might lead to them being unnecessarily harmed. Additionally, protecting children from potential abuse is perfectly justifiable since, as outlined by Suzanne Ost, we live in a society where children “are categorised and distinguished as a special vulnerable group”.(39)
Such reasoning led to the issuing of the CJA, which criminalises VCP(40) so long as it is grossly offensive, disgusting or otherwise of an “obscene” character.(41) Determining what is “obscene” can be difficult, since “obscenity” is a rather abstruse concept. Hence, when prosecuting under the CJA, it might be necessary for the courts to look to the Obscene Publications Act 1959 to determine whether the VCP is likely to “deprave and corrupt”.(42) It appears, therefore, that the CJA criminalises VCP partly on the basis that it can stop individuals from depraving and corrupting themselves, which is a legal paternalist approach to governance.(43) The VCP must also be pornographic, however, which is defined in the same way as extreme pornography since it must be reasonably assumed that the image has been produced solely, or principally, for sexual arousal.(44) Additionally, the VCP must focus on the child’s genital or anal region or, alternatively, portray one of the sexual undertakings that are listed in the legislation,(45) which covers a range of very specific, and notably explicit, sexual acts.(46)
Despite such detail on what type of images can be criminalised, the UK position is imprecise on what qualifies as a “child”. The CJA claims that a child is a person under the age of 18(47) and the image should be treated as a child if the “impression” conveyed is that of a child(48) or the “predominant” impression is that the image is a child.(49) This description might lead to difficulties in criminalising certain kinds of VCP since it requires juries to make subjective decisions.(50) There might be an avatar based pornographic film, for instance, that depicts sexual intercourse between two virtual creations, which makes it difficult to distinguish whether the act is between a child and an adult or between two adults. Such a problem may arise in Second Life, for instance, which is an online virtual world that has around 1,000,000 users.(51) By criminalising VCP there is the potential for the users – and also the designers – of Second Life to feel that their fundamental rights are being threatened. Such thinking mirrors the concerns in Ashcroft.(52) However, the depiction must have been created for sexual purposes, and hence virtual images – depicted in platforms like Second Life – may fall outwith the scope of the Act.
The CJA does, however, criminalise images that are wholly imaginary,(53) which could marginalise certain artistic endeavours. This could be viewed as an unnecessary limitation on one’s freedom of expression.(54) However, in the UK, this argument is rather unconvincing since the right to free speech is not absolute, and can be limited to protect public morality.(55) There are legitimate concerns, however, that the CJA has expanded the criminal law beyond its rationale. It is necessary, therefore, to look more closely at the justifications that underpin the UK’s approach.
Criminalising VCP: can it be justified?
There has unquestionably been an expansion of the criminal law, since it is effectively protecting children before any harm is being done, which is arguably in conflict with Mill’s harm principle.(56) However, there is nothing unusual about the law seeking to control behaviour in order to prevent actual crime. The Prevention of Crime Act 1953, for instance, made it a criminal offence to have a weapon in a public place, in an attempt to prevent serious assault. Similarly, VCP can have a negative impact on children because it can be used for grooming,(57) which justifies its criminalisation since there is a causative link — albeit fragile — between VCP and actual child abuse.
The CJA also offers explicit detail of what will constitute a prohibited image, which means its impact on wider free speech is minimal. This, it is suggested, promotes additional legitimacy in the CJA whilst further justifying the criminalisation of VCP. However, many of these images will be circulating the internet and restrictions could be perceived as controlling one’s ability to obtain information.(58) This position is entwined with the cyberlibertarian argument that the law has no place in criminalising online activity.(59) Nonetheless, in order to justify this, it would have to be established that VCP offers no threat to actual children and/or broader society. This is not the case since VCP might indirectly threaten children — and hence society — thus justifying its criminalisation.(60) However, in relation to protecting public morality, the courts might find it problematic to argue that criminalising VCP is justified.
In R v Milsom,(61) for example, the court declared that it had no power to impose a sentence of imprisonment for “public protection” for offences under s 62 of the CJA. Although not directly on point, such reasoning suggests that the “public morality” argument might be difficult to justify legally. That being said, the law already criminalises possession of extreme pornography partially on the basis that it causes an “indirect” harm.(62) Additionally, the UK is allowed a “margin of appreciation” which enables the law to be decided in light of its culture and values.(63) Most importantly, however, it must be done in good faith.(64)
It is suggested that criminalising VCP is being made in “good faith”. For instance, it is certainly not in the UK’s culture to depict children in a sexually explicit way, which justifies the criminalisation of VCP on the basis that it is culturally unacceptable. Such reasoning can be correlated with the notion that “whetting the appetite of paedophiles” provides enough of a justification to criminalise VCP, since society has a duty of care to protect children from any “potential” harm. However, in Ashcroft the leading judgment claimed that Government would have to show a “more direct” connection between VCP and actual illegal content in order to justify its criminalisation.(65) It is suggested that there are clear connections and that the UK has recognised them. For instance, the National Society for the Prevention of Cruelty to Children(66) highlights that in the UK approximately 20,000 indecent images of children are placed on the internet each week. If VCP was legal, the quantity of indecent images online could reach staggering numbers, which could increase the risk of children being exposed to such material. Bearing this in mind, even though VCP is depicting a wholly digitalised image, it could be argued that the image might end up looking like a real child and that child – or his/her friends and family – might come across the image. This is especially distressing since more children are routinely accessing the internet via their mobile phones,(67) which makes it extremely difficult for parents – never mind the law – to regulate what children are accessing.
This might increase the risks of online grooming where – in England & Wales – there was 373 offences in 2012-13.(68) It is suggested, therefore, that Government should be doing all it can to mitigate this and that includes criminalising VCP. A similar argument was put forward in Ashcroft, but the court said that endeavouring to protect children is not a sufficient reason for making something illegal.(69) This author disagrees with that position and, it is suggested, the only reason the US took this standpoint was due to the wider implications the CPPA had on legitimate speech and the weight the US places on its constitution. In order to substantiate this claim, it is necessary to provide some more practical reasons as to why VCP should be criminalised, whilst also demonstrating that there are theoretical arguments that mirror UK practice.
A dynamic relationship: theory & law
The state can limit an individual’s liberty to protect those who abide by the law, which is justified through the social contract theory.(70) This, according to Hobbes, is the notion that absolute liberty results in anarchy.(71) Such logic can be extended to the online world. If the state did not criminalise VCP then horrid images of children, for instance, would be freely circulating the internet, which could have a detrimental impact throughout society. One could argue, however, that even if VCP leads to an indirect harm it is not enough of a reason to criminalise it. This approach is evidenced in Ashcroft, where criminalising VCP was secondary to protecting the First Amendment.(72) However, Ashcroft also indicated that VCP could pose a threat to children.
Justice O’Connor, who dissented in part, outlined that the CPPA’s ban on youthful adult pornography violates the First Amendment, but VCP does not,(73) since the “danger to children who are seduced or molested with the aid of child sex pictures is just as great when the child pornographer or child molester uses visual depictions of sexual activity produced wholly or in part by electronic means”.(74) This justifies the argument that VCP and actual child abuse images can be criminalised on comparable grounds, since both can dispense similar levels of indirect harm.(75) Accordingly, the UK is limiting the potential for harm by criminalising VCP and all other forms of child abuse images. Ashcroft also highlighted that, in accordance with advancing technology, it will become impossible to tell the difference between actual child pornography and VCP,(76) which makes criminalising actual child abuse images more difficult.(77)
The US did make “indistinguishable” virtual images illegal under the PROTECT Act 2003,(78) which was arguably inspired by Justice Rehnquist’s dissenting judgment in Ashcroft.(79) This was primarily because paedophiles were escaping punishment by claiming the state could not prove the images were not “virtual”.(80) Again, the UK approach attempts to alleviate any threat of VCP by completely criminalising it. One could argue, however, that VCP will stop there being a market for real child abuse images since the perpetrators will not risk convictions when they can get VCP that looks moderately real.(81) This argument is unconvincing on three broad grounds: (1) legalising VCP might legitimise the sexual exploitation of children;(82) (2) VCP may stimulate the sexual urges of paedophiles and lead them to abuse a real child;(83) and (3) VCP can be used for grooming, which poses a threat to the safety of children.(84) It is suggested, therefore, that criminalising VCP is defensible not only on the grounds that it “whets the appetite of paedophiles” but also on the basis that it objectifies children. Such sentiments mirror feminist theories, which advocate that extreme pornography allows for exploitative representations of women to male audiences.(85) VCP does the same except it depicts exploitative representations of children to paedophile audiences, which further justifies its criminalisation. However, in accordance with H L A Hart’s reasoning, it is important that there is a distinction between an affront to public decency and acts that take place in private.(86)
Hart justifies his argument by relying on Mill’s harm principle, where he outlines that individual liberty demands that individuals be able to do what they want even if it distresses others.(87) This is especially the case in an individual’s home where there is a fundamental right of privacy.(88) However, if VCP was legal then producers could begin to advertise in public places, mainly the internet, which could pose a threat to public morality and children. Moreover, the Canadian Supreme Court adopted the harm principle and found that degrading – and thus dehumanising – sexual treatment results in harm to women and therefore society as a collective whole.(89) The same reasoning can apply to VCP since it is unquestionably a dehumanising sexual act. Accordingly, criminalising VCP on the basis that it might encourage actual abuse, and might negatively impact society, becomes so justifiable that it borders on common sense.
The notion that VCP incites criminal activity is enough to criminalise it, since it is not only socially distasteful, but can also aid paedophiles in grooming. VCP also depicts children in a sexually explicit way, which could give rise to potential exploitation. There are various theoretical justifications that lend themselves to criminalising VCP. The US approach differs, however, and this has been evidenced in the case of Ashcroft where the court legalised VCP by overruling the CPPA. Despite this, this paper has argued that the criminalisation of VCP is necessary since it is protecting public morality and thus indirect harms.
This justification must be taken in its cultural context, since the US First Amendment affords a very wide protection of free speech. However, if the CPPA had provided a narrower definition of VCP, the US Supreme Court might have found it constitutionally sound. This claim is evidenced through the PROTECT Act, which has not been constitutionally challenged and was mainly introduced to stop paedophiles evading criminal liability on the grounds that a real image is “indistinguishable” from a virtual image. The UK position provides a narrower account of VCP, which limits its impact on other areas of free speech. Additionally, the UK’s right of free speech is limited since it can be regulated in the interests of protecting public morality. This justifies the criminalisation of VCP on the foundation that there is a legitimate aim. Taking all of this into account, the "whetting of paedophiles' appetites" is just one of many reasons for criminalising VCP. The UK Government, therefore, should continue down the path that it has created since it is protecting public morality and – most importantly – our children.
Jordan M Gray has a first class honours law degree from the University of Strathclyde, where he founded the Strathclyde Student Law Review. He is a future trainee solicitor at DWF. The views expressed are his alone and not those of DWF.
(1) UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol 1577, p 3, available at: www.refworld.org/docid/3ae6b38f0.html (accessed 20 March 2015).
(2) J Mill, On Liberty and the Subjugation of Women (Penguin, 2006), cited in N Abhilash & G James, “The regulation of online extreme pornography: purposive teleology (in) action" (2013) International Journal of Law and Information Technology, 1-25.
(3) Ashcroft v Free Speech Coalition 535 US 234 (2002) at 241.
(4) D Cisneros, “Virtual Child Pornography on the Internet: A 'Virtual' Victim?” 1 Duke Law & Technology Review (2002), 1-8.
(5) 535 US 234 (2002).
(6) 395 US 444 (1969).
(7) 535 US 234 (2002) at 236.
(10) Coroners and Justice Act 2009, s 62(1).
(11) M Eneman, A Gillespie and B Stahl, Criminalising Fantasies: The Regulation of Virtual Child Pornography (2009), accessed (20 March 2015) via www.tech.dmu.ac.uk/~bstahl/publications/2009_Criminalising_Fantasies_ECIS.pdf
(12) Ashcroft, supra, n 3.
(13) 18 USC § 2252A(a)(1996).
(14) Ibid. at §§ 2252A(a)(6), 2256(8)(B).
(15) 458 US 747 (1982).
(16) Osbourne v Ohio 495 US 103 (1990).
(17) For an overview of utilitarianism see J S Mill, Utilitarianism (4th ed, London) (1871).
(18) Congressional Findings, note 3, following § 2251; see also Osborne v Ohio, 495 US 103 (1990) at 112.
(19) Ibid., note 4, 10(B), following § 2251.
(20) 413 US 15 (1973).
(21) Supra, n 15.
(22) 495 US 103 (1990).
(23) Ashcroft, supra, n 3, at 245.
(24) 521 US 844 (1997), at 874.
(26) Ashcroft, supra, n 3, at 246.
(27) For example, despite the US being a predominantly Christian country, Virginia v Black 538 US 343 (2003) found that Virginia's statute against cross burning was unconstitutional.
(28) Ashcroft, supra, n 3, at 244.
(30) Protection of Children Act 1978.
(31) Available at www.justice.gov.uk/publications/non-photographic-depictions.htm (accessed 21 March 2015).
(32) Ibid., p 1.
(33) CPPA, § 2256(8)(B).
(34) Consultation paper, n 31 supra, p 4.
(35) For a definition see s 7(7) and (8) of the Protection of Children Act 1978. Also, the Criminal Justice and Public Order Act 1994, part VII, s 84.
(36) For discussion of the differences between pseudo-images and other content see Lord Justice Simon Brown’s judgment in Goodland v DPP  1 WLR 1427.
(37) Consultation paper, n 31 supra, p 5.
(38) Kant, cited in J Feinberg, The Moral Limits of the Criminal Law: Offense to Others (1985, Oxford: Oxford University Press).
(39) Suzanne Ost, “Criminalising fabricated images of child pornography: a matter of harm or morality?” Legal Studies, Vol 30 No 2, June 2010, p 232.
(40) Coroners and Justice Act 2009, s 62(1).
(41) Ibid., s 62(2) and (3).
(42) s 1(1).
(43) Feinberg, supra, n 38.
(44) Supra, n 40.
(45) Ibid., s 62(7).
(46) Ibid., s 62(7)(a)-(f). Offences range from oral sex to bestiality.
(47) Supra, n 40, s 65(5).
(48) Ibid., s 65(6)(a).
(49) Ibid., s 65(6)(b).
(50) J Hornle, “Countering the Dangers of Online Pornography: Shrewd Regulation of Lewd Content?” 2 European Journal of Law and Technology (2011), 1.
(51) Business Insider, available at www.businessinsider.com/second-life-today-2014-7?op=1&IR=T (accessed 24 March 2015).
(52) Ashcroft, supra, n 3.
(53) Supra, n 40, s 65(7) and (8).
(54) R v Sharpe  SCC 2; also article 10, European Convention on Human Rights.
(55) Article 10(2) ECHR.
(56) J S Mill, supra, n 2.
(57) Congressional findings, supra, n 18.
(58) Julia Hornle, supra, n 50.
(60) Congressional findings, supra, n 18.
(61)  EWCA Crim 2325.
(62) For example, Criminal Justice and Immigration Act 2008, s 63 criminalises possession of extreme pornography.
(63) Handyside v United Kingdom (1976) 1 EHRR 737.
(65) Ashcroft, supra, n 3, at 254.
(66) Cited in European Online Grooming Project (2001), “Online Abuse: Literature Review and Policy Context”: see section 1.3.
(67) S Livingstone and L Haddon, EU Kids Online: final report (2009: LSE, London: EC Safer Internet Plus Programme Deliverable D6.5).
(68) K Smith, P Taylor and M Elkin, Crimes detected in England and Wales 2012-13 (2013).
(69) Ashcroft, supra, n 3, at 252-253.
(70) Hobbes, cited in M D A Freeman, Lloyds Introduction to Jurisprudence (2008: London, Sweet & Maxwell).
(72) Ashcroft, supra, n 3.
(73) Ibid., at 266.
(74) Ibid., at 267.
(75) Excluding the direct harm caused to the child who will have been abused.
(76) Ashcroft, supra, n 3, see dissenting judgment of Chief Justice Rehnquist at 267-274; see also Turner Broadcasting System, Inc v FCC 520 US 180 (1995), at 195.
(77) Goodland v DPP  1 WLR 1427.
(78) See s 502 (a)(1)(b), available at www.gpo.gov/fdsys/pkg/BILLS-108s151enr/pdf/BILLS-108s151enr.pdf (accessed 24 March 2015).
(79) Ashcroft, supra, n 3, at 258.
(80) K James, “Protecting Our Children and the Constitution: An Analysis of the 'Virtual' Child Pornography Provisions of the PROTECT Act 2003” (2006) William & Mary Law Review, Vol 47, issue 6, p 2149.
(81) A Shytov, “Indecency on the Internet and International Law”, International Journal of Law and Information Technology (2005).
(82) NSPCC Briefing: Coroners and Justice Bill (2009), p 3.
(83) Congressional findings, supra, n 18.
(85) Catherine Itzin, Pornography: women, violence, and civil liberties (1992: Oxford; New York: Oxford University Press).
(86) H L A Hart, Law, Liberty and Morality (1963: Oxford University Press), p 45.
(87) Ibid., at 47.
(88) Article 8, European Convention on Human Rights.
(89) R v Butler  DLR (4th) 449, 477 per Justice Sopinka.