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Downloading Child Pornography

Downloading Child Pornography

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Published by Iyavar Chetty

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Published by: Iyavar Chetty on Jun 05, 2011
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02/13/2013

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DOWNLOADING CHILD PORNOGRAPHY IS THECREATION OF CHILD ABUSE IMAGESINTRODUCTION
 The recent case of Gareth Barnes, a convicted paedophilesentenced to five years imprisonment for
 possession of child pornography downloaded from the Internet 
suggests that police and prosecutors arestill not aware of the proper interpretation of section 24B(1)(b) of the
Films and Publications Act, 1996
(Act). Gareth Barnes, who has twoprevious convictions for the indecent assault of children between the agesof four and eight years, was prosecuted only for a section 24B(1)(a)offence the unlawful possession of child pornography which hedownloaded from the Internet. His actions, however, are contraventionsof both subsections (1)(a)
and (b)
of section 24B of the Act.It is important to acknowledge that the primary task of lawenforcement is to interpret legislation in such a way as to give effect tothe intent of Parliament by proper interpretation of every word, phraseand clause in an Act within the context of not only the intention of Parliament but also within the context of the world we live in – the realworld and “virtual” world.
SECTION 24B(1)(b) OF THE ACT
Section 24B(1)(b) provides that any person who
“creates, producesor in any way contributes to, or assists in the creation or production” 
of child pornography
shall be guilty of an offence” 
. The properinterpretation of 
“creates” 
requires an appreciation of the differencebetween
“creates” 
and
“produces” 
and the difference between
digitally-transmitted images
and
analogue images,
bearing in mind that images of child abuse are traded and exchanged mainly, and almost exclusively,through the Internet and mobile cellular phones. It is important,therefore, to understand the technology of digital images not only toensure proper charges but to avoid, for instance, findings like that of theHigh Court (Natal Provincial Division) in Case No. AR50/05:
“We are also not in agreement with the finding by the learneMagistrate that the images were ‘original’ images as it is common causethat these images were either 
downloaded from the Internet or transferred from a digital camera.
The original images thereforewould be those contained on the camera disc or the original source fromwhich it was loaded onto the Internet site”.
THE TECHNOLOGY OF DIGITAL IMAGES
Until the introduction of digital technology, the traditional imagecaptured through photography was an
analogue image. A digital image,however, is a numerical representation recorded simply as a series of binary digits (bits) – either one or zero with no value in between
.
 The
 
image is captured, in batches of ones and zeroes, by being focussed ontoan electronic sensor made up of individual light-sensitive elements called
 pixels
or picture elements.
Unlike analogue images, digital recordingtechnology provides no original image that could be produced inevidence.
An analogue image always has an original, either in a negativeor positive format, from which copies may be produced. For a digitalimage, the “original” consists of data recorded in memory, from which animage can be generated and because the recorded image is representedas a finite set of numbers,
exact 
copies may be made. Therefore, anydigital image can be thought of as being the “original” even if it isproduced from a copied set of data – every digital copy is an identicalreplica. [US Fed.R.Evid.1001(3) law, for instance, provides that printoutsof data stored in a computer are originals.] In so far as
analogue pictures
are concerned, there can be only
one original
from which any number of 
copies
can be produced and distributed as physical pictures. But a digitalimage is different – there is no original physical picture but just batches of zeroes and ones. In order to see the physical image, one needs to usedigital technology to decode the zeroes and ones into a physical image.[Failure to understand the difference between analogue pictures anddigital images leads to the sort of conclusions reached by the High Court(Natal Provincial Division) in the matter of the
Koralevs and the State
1
, forinstance:
We are also not in agreement with the finding by thelearned Magistrate that the images were ‘original’ images as it iscommon cause that these images were either downloaded fromthe Internet or transferred from a digital camera. The original images therefore would be those contained on the camera disc or the original source from which it was loaded onto the Internet site.
]
 The fact that a digital image is
stored and transmitted 
 
in batches of ones and zeroes
 
the binary language of computers – is significant notonly in dealing with the issue of 
originals
but also in so far as
creation
isconcerned something that police and prosecutors do not seem toappreciate.
THE MEANING OF
‘CREATE”
IN THE CONTEXT OF DIGITALTECHNOLOGY 
Decisions of the United Kingdom’s Court of Appeal (CriminalDivision) in the matter of 
R v Smith
and
R v Jayson
(2003) and the State of Michigan Court of Appeals in the case of 
People of the State of Michigan v Brian Lee Hill
(2006) confirm the fact that Gareth Barnes should havebeen charged with contravention of both subsections (1) and (1)(b) of 
1
Case No. AR50/05. Vladimir Koralev and his wife Elena were both convicted on chargesof possession of child pornography by the Durban Regional Court but their convictionswere overturned on appeal by the High Court (Natal Provincial Division)
 
section 24B of the
Films and Publications Act, 1996
for the downloading of child pornography from the Internet.In the matter of 
R v Smith
and
R v Jayson,
the UK Court of Appealheld that
“the act of voluntarily downloading an indecent image from theInternet on to a computer screen was an act of making a photograph or  pseudo-photograph.
By downloading the image, the operator wascreating or causing the image to exist on the computer screen.”
(The Court of Appeal followed its 2001 decision in the matter of 
R Bowden
that the “
wording in s.1 of the 1978 Act as amended was clear and unambiguous. It rendered unlawful the making of a photograph or a pseudo-photograph. The words ‘to make’ had to be given their naturaland ordinary meaning, and in the instant context that was ‘to cause toexist; to produce by action, to bring about’. By virtue of s. 7 of the 1978 Act that meaning applied to negatives, copies of photographs and datastored on computer disc.
 A person who either downloaded imagesonto disc or who printed them out was making them. Todownload or print the images within the jurisdiction was to createnew material 
. The reproduction of indecent material to be found on theInternet was within the mischief aimed at by legislation when the 1978 Act was amended by adding the words ‘to make’”.
)And in the case of 
Brian Lee Hill
, the Michigan Court of Appeals,after reviewing the dictionary definition of the word
“make” 
, concludedthat the
bottom line was that, following the mechanical antechnical act of burning images onto the CD-Rs, something newwas created or made that did not previously exist”
and held that
“downloading child pornography is making it.”“CREATE”
IN THE CONTEXT OF THE
FILMS AND PUBLICATIONS ACT 
 The anti-child pornography provisions of the
Films and Publications Act, 1996
(Act), as well as the definition of “child pornography”, hasundergone several amendments since the Act came into force and effectin 1998, revealing the concerns of Parliament about the increasing onlinesexual abuse and exploitation of children and the need to ensure thatlegislation related to the protection of children from sexual abuse andexploitation is interpreted and applied within the context of both the realand “virtual” worlds. The concerns of Parliament may be summarised asfollows:
the increase in the dissemination and instantaneous transmission of computer-assisted trade in child pornography;
the difficulties in the investigation and prosecution of childpornography offenders, given the nature of the Internet;

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