| Return to Contents The Computer And Child Pornography Peter Harris The use of information technology has transformed the way in which legitimate business operates and it should come as no surprise to discover that the same technology is now being employed for unlawful purposes. Amongst those unlawful purposes is the use of digital technology to alter photographic images, and the use of e-mail and other forms of electronic communication for the dissemination of such images. Whilst the Internet is and always has been more than a means of accessing information of a paedophile nature, it is this aspect of it that most offends the general public. Concern over the growth of paedophilia has led to the passing of legislation aimed directly at the perpetrators. In the United Kingdom the Protection of Children Act 1978 ("the 1978 Act") was intended to make unlawful the taking, and possession, of indecent photographs of children. This statute was "mirrored" in Jersey in the form of the Protection of Children (Jersey) Law 1994 ("the 1994 Law"). Unfortunately by 1994 it had already become apparent in the United Kingdom that the 1978 Act was inadequate to deal with a disturbing trend made possible by technology that allowed images scanned into a computer to be altered and reprinted in a new form. No longer could it be said that a photograph cannot lie. It was also extremely easy for a person to transfer these images electronically to people of a like mind, and because of the global nature of the Internet this led to an increasing proliferation of such material. It was not uncommon for a photograph of the head of a young child to be superimposed on the otherwise indecent photograph of an adult body in order to make the result appear to be a pornographic photograph of the child. In order to deal with this development the offence created by the 1978 Act was amended to cover not only a photograph but also a pseudo-photograph, which was defined as: "an image, whether made by computer graphics or otherwise howsoever, which appears to be a photograph". A further amendment was made to extend the definition of photograph to include: "data stored on a computer disc or by other electronic means which is capable of conversion into a photograph", with a similar provision in respect of pseudo-photographs ("the 1994 amendments"). In the Protection of Children (Amendment) (Jersey) Law, approved by the States on 9th September, 1997, the first of the 1994 amendments is incorporated in Jersey but not the second. This was apparently considered unnecessary because of the judgment of the English Court of Appeaellows [1], regarding the interpretation of the definition of "photograph". In that case the appellant had stored data representing pornographic pictures of children on the hard disk of a computer at his workplace. The offence was alleged to have been committed at a time prior to the 1994 amendments and, after certain directions from the trial judge, the defendant pleaded guilty. The Court of Appeal was asked to determine, inter alia, whether the data constituted a copy of a photograph. Under the 1978 Act (and the 1994 Law) the definition of "photograph" includes a copy. Giving the judgment of the Court, Evans LJ declared that as the data could be converted by appropriate means into a screen image and into a print which exactly reproduced the original photograph from which it was derived it would amount to a copy. The principles of statutory interpretation applied in this case led to an acceptable interpretation of the 1978 Act and may assist when a Court is faced with the situation where new technology enables forms of behaviour which could not have been foreseen when the statutory provisions were enacted. It is suggested, however, that this is of limited authority now, at a time when the States were asked to pass the 1994 Law, because whilst it may be true that these forms of behaviour were not foreseeable in 1978 when the original legislation was enacted in England, they most certainly are in 1997. If the question of whether data on a computer’s hard disk could constitute a copy of a photograph came before the Royal Court to determine now that the 1994 Law has been amended, this authority could not be relied upon, as the Court would no longer be considering a "later technical innovation". Further, Evans LJ’s assessment that because the data in Fellows could be converted to display an exact reproduction of the original photograph from which it was derived satisfied him that it was a copy of a photograph is no more than just that. In a case where it is alleged that a computer’s hard disk contains data that is a copy of a pseudo-photograph it might well be impossible to prove, because by definition there is more than one original photograph. The 1994 amendments preclude that difficulty, but the 1997 amendment does not. The same concern arises as a result of the development of digital cameras which record the image to disk rather than to film. In such a case there may not be an original photograph capable of being copied and the approach of the Court of Appeal would accordingly be insufficient. The solution would seem to be the enactment in Jersey of the second of the 1994 amendments referred to above so that the risk would no longer exist, either in respect of photographs or pseudo-photographs. The pace of development of the computer industry is considerable. It will be regrettable if the failure to take this opportunity at least to achieve some degree of catching up results in an unintended loophole remaining available. Peter Harris is an advocate of the Royal Court of Jersey and a partner in Messrs. Crills, P.O. Box 72, 44 Esplanade, St. Helier, Jersey JE4 8PN. |