Child Pornography/Child Sexual Abuse Material

Author: Richard Wingfield

NB: While the term ‘child pornography’ has been used traditionally and continues to be used on occasion, it is increasingly understood to be inappropriate since it suggests a degree of complicity or consent on the part of the child. Instead, the term ‘child sexual abuse material’ (CSAM), or sometimes ‘child sexual abuse imagery’ (CSAI) is now considered to describe the phenomenon and is the term used here.

This entry: (i) sets out the agreed international definitions of the term as found in relevant legal instruments and (ii) provides examples of existing regulatory responses to child sexual abuse material.

Agreed international definitions

Child sexual abuse material is prohibited under a number of international legal instruments, two of which provide relatively clear definitions. The first is Article 2(c) of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (OP-SC-CRC), which defines the term “child pornography” as “any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes”. This may be considered the minimum core of what constitutes child sexual abuse material.

The second, broader definition is provided by Article 9 of the Budapest Convention, where “child pornography” includes: “pornographic material that visually depicts (a) a minor engaged in sexually explicit conduct; (b) a person appearing to be a minor engaged in sexually explicit conduct; (c) realistic images representing a minor engaged in sexually explicit conduct”. While paragraph (a) broadly overlaps with the definition in OP-SC-CRC, paragraphs (b) and (c) go further by including persons appearing to be minors and realistic images representing minors. Under the Budapest Convention, states are, however, free not to apply those paragraphs, meaning that paragraph (a) is the core part of the definition.

Instruments vary in terms of the age at which a person is considered a ‘child’ or a ‘minor’. While OP-SC-CRC does not define “child”, the term is defined in Article 1 of the Convention on the Rights of the Child itself as any

Human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

Convention on the Rights of the Child

The Budapest Convention is narrower in the discretion it offers, defining ‘minors’ as “all persons under 18 years of age”; while it does allow state parties to set a lower age limit, however, this cannot be less than 16 years.

Existing regulatory responses

Most states have sought to comply with their obligations under international law to prohibit child sexual abuse material through criminalization, creating specific criminal offences relating to child sexual abuse material. The International Centre for Missing and Exploited Children has published model legislation (and a global review of existing legislation) which include as a minimum definition, “the visual representation or depiction of a child engaged in a (real or simulated) sexual display, act, or performance” with ‘child’ defined as “anyone under the age of 18” (ICMEC, 2018)¹.

In addition to criminalization, many governments take action, sometimes through regulation and sometimes informally, to prevent access to child sexual abuse imagery online. In many states, governments have encouraged ISPs, in particular, to use filters to block access to certain websites known to carry or have carried child sexual abuse imagery. Governments have also encouraged and supported other self-regulatory initiatives, such as the creation of hash databases of known child sexual abuse imagery by companies and non-governmental organizations, which are then shared so as to more easily block known images across many platforms. These include the Internet Watch Foundation (in the United Kingdom), the National Centre for Missing and Exploited Children (in the USA), and the Canadian Centre for Child Protection (in Canada).

References

1. International Centre for Missing and Exploited Children – ICMEC. (2018). Child Sexual Abuse Material: Model Legislation & Global Review. 9th Edition. Available at: https://www.icmec.org/wp-content/uploads/2018/12/CSAM-Model-Law-9th-Ed-FINAL-12-3-18.pdf.