91. Article 9 on child pornography seeks to strengthen protective measures for children, including their protection against sexual exploitation, by modernising criminal law provisions to more effectively circumscribe the use of computer systems in the commission of sexual offences against children.
92. This provision responds to the preoccupation of Heads of State and Government of the Council of Europe, expressed at their 2nd summit (Strasbourg, 10 – 11 October 1997) in their Action Plan (item III.4) and corresponds to an international trend that seeks to ban child pornography, as evidenced by the recent adoption of the Optional Protocol to the UN Convention on the rights of the child, on the sale of children, child prostitution and child pornography and the recent European Commission initiative on combating sexual exploitation of children and child pornography (COM2000/854).
93. This provision criminalises various aspects of the electronic production, possession and distribution of child pornography. Most States already criminalise the traditional production and physical distribution of child pornography, but with the ever-increasing use of the Internet as the primary instrument for trading such material, it was strongly felt that specific provisions in an international legal instrument were essential to combat this new form of sexual exploitation and endangerment of children. It is widely believed that such material and on-line practices, such as the exchange of ideas, fantasies and advice among paedophiles, play a role in supporting, encouraging or facilitating sexual offences against children.
94. Paragraph 1(a) criminalises the production of child pornography for the purpose of distribution through a computer system. This provision was felt necessary to combat the dangers described above at their source.
95. Paragraph 1(b) criminalises the ‘offering’ of child pornography through a computer system. ‘Offering’ is intended to cover soliciting others to obtain child pornography. It implies that the person offering the material can actually provide it. ‘Making available’ is intended to cover the placing of child pornography on line for the use of others e.g. by means of creating child pornography sites. This paragraph also intends to cover the creation or compilation of hyperlinks to child pornography sites in order to facilitate access to child pornography.
96. Paragraph 1(c) criminalises the distribution or transmission of child pornography through a computer system. ‘Distribution’ is the active dissemination of the material. Sending child pornography through a computer system to another person would be addressed by the offence of ‘transmitting’ child pornography.
97. The term ‘procuring for oneself or for another’ in paragraph 1(d) means actively obtaining child pornography, e.g. by downloading it.
98. The possession of child pornography in a computer system or on a data carrier, such as a diskette or CD-Rom, is criminalised in paragraph 1(e). The possession of child pornography stimulates demand for such material. An effective way to curtail the production of child pornography is to attach criminal consequences to the conduct of each participant in the chain from production to possession.
99. The term ‘pornographic material’ in paragraph 2 is governed by national standards pertaining to the classification of materials as obscene, inconsistent with public morals or similarly corrupt. Therefore, material having an artistic, medical, scientific or similar merit may be considered not to be pornographic. The visual depiction includes data stored on computer diskette or on other electronic means of storage, which are capable of conversion into a visual image.
100. A ‘sexually explicit conduct’ covers at least real or simulated: a) sexual intercourse, including genital-genital, oral-genital, anal-genital or oral-anal, between minors, or between an adult and a minor, of the same or opposite sex; b) bestiality; c) masturbation; d) sadistic or masochistic abuse in a sexual context; or e) lascivious exhibition of the genitals or the pubic area of a minor. It is not relevant whether the conduct depicted is real or simulated.
101. The three types of material defined in paragraph 2 for the purposes of committing the offences contained in paragraph 1 cover depictions of sexual abuse of a real child (2a), pornographic images which depict a person appearing to be a minor engaged in sexually explicit conduct (2b), and finally images, which, although ‘realistic’, do not in fact involve a real child engaged in sexually explicit conduct (2c). This latter scenario includes pictures which are altered, such as morphed images of natural persons, or even generated entirely by the computer.
102. In the three cases covered by paragraph 2, the protected legal interests are slightly different. Paragraph 2(a) focuses more directly on the protection against child abuse. Paragraphs 2(b) and 2(c) aim at providing protection against behaviour that, while not necessarily creating harm to the ‘child’ depicted in the material, as there might not be a real child, might be used to encourage or seduce children into participating in such acts, and hence form part of a subculture favouring child abuse.
103. The term ‘without right’ does not exclude legal defences, excuses or similar relevant principles that relieve a person of responsibility under specific circumstances. Accordingly, the term ‘without right’ allows a Party to take into account fundamental rights, such as freedom of thought, expression and privacy. In addition, a Party may provide a defence in respect of conduct related to “pornographic material” having an artistic, medical, scientific or similar merit. In relation to paragraph 2(b), the reference to ‘without right’ could also allow, for example, that a Party may provide that a person is relieved of criminal responsibility if it is established that the person depicted is not a minor in the sense of this provision.
104. Paragraph 3 defines the term ‘minor’ in relation to child pornography in general as all persons under 18 years, in accordance with the definition of a ‘child’ in the UN Convention on the Rights of the Child (Article 1). It was considered an important policy matter to set a uniform international standard regarding age. It should be noted that the age refers to the use of (real or fictitious) children as sexual objects, and is separate from the age of consent for sexual relations.
Nevertheless, recognising that certain States require a lower age-limit in national legislation regarding child pornography, the last phrase of paragraph 3 allows Parties to require a different age-limit, provided it is not less than 16 years.
105. This article lists different types of illicit acts related to child pornography which, as in articles 2 – 8, Parties are obligated to criminalise if committed “intentionally.” Under this standard, a person is not liable unless he has an intent to offer, make available, distribute, transmit, produce or possess child pornography. Parties may adopt a more specific standard (see, for example, applicable European Community law in relation to service provider liability), in which case that standard would govern. For example, liability may be imposed if there is “knowledge and control” over the information which is transmitted or stored. It is not sufficient, for example, that a service provider served as a conduit for, or hosted a website or newsroom containing such material, without the required intent under domestic law in the particular case. Moreover, a service provider is not required to monitor conduct to avoid criminal liability.
106. Paragraph 4 permits Parties to make reservations regarding paragraph 1(d) and (e), and paragraph 2(b) and (c). The right not to apply these sections of the provision may be made in part or in whole. Any such reservation should be declared to the Secretary General of the Council of Europe at the time of signature or when depositing the Party’s instruments of ratification, acceptance, approval or accession, in accordance with Article 42.