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)
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
requires an appreciation of the differencebetween
and the difference between
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 learned Magistrate 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