Project on Cybercrime

www.coe.int/cybercrime

 

 

 

Strasbourg, 27 October 2009

 

 

 

 

 

 

 

Global study on

protecting children against sexual exploitation

and sexual abuse

 

Questionnaire on substantive law provisions

 

Corresponding to

Article 9 of the Convention on Cybercrime and of

Articles 18-24 of the Convention on the Sexual Exploitation and Sexual Abuse of Children

 

 

 

Prepared by the

Project on Cybercrime

 

 

 

 

 

 

 

 

Contact   Department of Information Society and Action against Crime Directorate General of Human Rights and Legal Affairs Council of Europe F-67075 Strasbourg CEDEX (France)

Tel  +33-3-8841-2103 Fax +33-3-9021-5650 email  [email protected]

 

 

 

Background

 

Fostering children’s trust and confidence in the Internet together with the protection of their dignity, security and privacy is a priority for the Council of Europe.  The Internet is a space of freedom to express and communicate, to search for information and to learn, to work and to play. Access to the Internet thus offers great potential for children to exercise and enjoy their rights and values through the Internet.

 

At the same time, threats such as cybercrime and the sexual exploitation and abuse of children through information and communication technologies pose particular challenges. The Council of Europe is addressing these by setting common standards and policies, by supporting educational, preventive and other measures to empower children, by promoting criminal justice action and by strengthening multi-stakeholder and international cooperation.

 

Within the context of the Project on Cybercrime, the Council of Europe is undertaking a global study on the measures taken by countries to criminalise conduct related to the sexual exploitation and abuse of children, including child pornography. The standards of reference are relevant provisions of the Convention on Cybercrime – CETS 185 (article 9 on child pornography) and the substantive law provisions of the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (CETS 201). Extracts from these treaties are attached as an appendix.

 

The study will allow for the sharing of good practices, encourage implementation of these treaties and facilitate technical cooperation activities and support to countries with the aim of protecting children against sexual exploitation and sexual abuse in the online environment.

 

It is envisaged to present the results of the study at the global Octopus conference on cooperation against cybercrime at the Council of Europe from 23 to 25 March 2010.

 

Replies to the questionnaire should be returned in English or French to [email protected]

 

1                  Questions

 

Please reply by marking or filling the boxes under each of the following questions. Please attach extracts or relevant articles of your national legislation as an appendix.

 

1. Which laws regulate offences on sexual exploitation and sexual abuse of children including child pornography in your country?

 

Special law/s
Criminal code
Others
Please specify

 

2. In addition to general provisions, does your country have specific provisions on protecting children against sexual exploitation and sexual abuse?

 

Yes
No
If yes, please specify

 

3. In addition to general provisions, does your country have specific provisions on protecting children against sexual exploitation and sexual abuse on the Internet?

 

Yes
No
If yes, please specify

 

4. Does your country plan to amend the legislation in this field?

    

Yes
No
If yes, please provide information on reforms planned or underway

 

5. Is “sexual abuse” a criminal offence in your country, including the following conduct:

 

	Yes/ No	If yes, please specify the relevant articles in your legislation
engaging in sexual activities with a child who, according to the relevant provisions of national law, has not reached the legal age for sexual activities
engaging in sexual activities with a child where: use is made of coercion, force or threats; or abuse is made of a recognised position of trust, authority or influence over the child, including within the family; or abuse is made of a particularly vulnerable situation of the child, notably because of a mental or physical disability or a situation of dependence
Other types of conduct
Are attempt, aiding or abetting of such conduct criminal offences in your country?

 

Reference: Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, Article 18

 

6. Is “child pornography” a criminal offence in your country, including the following conduct:

 

	Yes/ No	If yes, please specify the relevant articles in your legislation
producing child pornography
producing child pornography for the purpose of its distribution through a computer system
offering child pornography
offering child pornography through a computer system
making available child pornography
making available child pornography through a computer system
distributing child pornography
distributing child pornography through a computer system
transmitting child pornography
transmitting child pornography through a computer system
procuring child pornography for oneself or for another person
procuring child pornography through a computer system for oneself or for another person
possessing child pornography
possessing child pornography in a computer system or on a computer-data storage medium
knowingly obtaining access, through information and communication technologies, to child pornography
Other
Are attempt, aiding or abetting of such conduct criminal offences in your country?

 

Reference:

• Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, Article 20
• Council of Europe Convention on cybercrime, Article 9

 

7. Is “the participation of a child in pornographic performances” a criminal offence in your country, including the following conduct:

 

	Yes/ No	If yes, please specify the relevant articles in your legislation
recruiting a child into participating in pornographic performances or causing a child to participate in such performances
coercing a child into participating in pornographic performances
profiting from or otherwise exploiting a child for such purposes
knowingly attending pornographic performances involving the participation of children
Other
Are attempt, aiding or abetting of such conduct criminal offences in your country?

 

Reference:

• Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (Article 21)

 

8. Is “child prostitution” a criminal offence in your country, including the following conduct:

 

	Yes/ No	If yes, please specify the relevant articles in your legislation
recruiting a child into prostitution or causing a child to participate in prostitution
coercing a child into prostitution
profiting from or otherwise exploiting a child for such purposes
having recourse to child prostitution
Are attempt, aiding or abetting of such conduct criminal offences in your country?

 

Reference:

• Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, Article 19

 

9. Is “the corruption of children” a criminal offence in your country, including the following conduct:

 

	Yes/ No	If yes, please specify the relevant articles in your legislation
the intentional causing, for sexual purposes, of a child who has not reached the age below which it is prohibited to engage in sexual activities with a child, to witness sexual abuse or sexual activities, even without having to participate
Are attempt, aiding or abetting of such conduct criminal offences in your country?

 

Reference:

• Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse , Article 22

 

10. Is “solicitation of children for sexual purposes” (grooming) a criminal offence in your country, including the following conduct:

 

	Yes/ No	If yes, please specify the relevant articles in your legislation
the intentional proposal, through information and communication technologies, of an adult to meet a child who has not reached the age below which it is prohibited to engage in sexual activities with a child for the purpose of committing any of the following offences and where this proposal has been followed by material acts leading to such a meeting:
engaging in sexual activities with a child who, according to the relevant provisions of national law, has not reached the legal age for sexual activities;
producing child pornography
Other
Are attempt, aiding or abetting of such conduct criminal offences in your country?

 

Reference:

• Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, Article 23

 

11. 
    Does the term “child pornography” include the following:

 

pornographic material that visually depicts	Yes/ No	If yes, please specify the relevant articles in your legislation
a minor engaged in sexually explicit conduct
a person appearing to be a minor engaged in sexually explicit conduct
realistic images representing a minor engaged in sexually explicit conduct
any material that visually depicts a child engaged in real or simulated sexually explicit conduct or any depiction of a child’s sexual organs for primarily sexual purposes
Other elements

 

12. What is the age limit for the term minor/child etc with regard to child pornography?

 

	Yes/ No	Please specify the relevant articles in your legislation
18 years
16 years
Other (please specify

 

13. Do specific provisions on the obligations of Internet Service Providers with regard to child pornography exist in your country?

 

	Yes/ No	If yes, please specify the relevant articles in your legislation, regulation or agreement
yes, by voluntary commitment
yes, by contract
yes, by legal regulation
No

 

 

Important: Please attach the relevant articles of your legislation to your replies (preferably in English)

 

2                  Appendix

 

Convention on Cybercrime (CETS 185)

 

See also the Explanatory Report to this treaty for further guidance[1]

 

 

Extract from the Explanatory Report:

Offences related to child pornography (Article 9)

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.

 

Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (CETS 201)

 

See also the Explanatory Report to this treaty for further guidance.[2]

 

Extract from the Explanatory Report:

119.   Firstly, paragraph 1 a criminalises the fact of a person engaging in sexual activities with a child who has not reached the age as defined in domestic law below which it is prohibited to engage in sexual activities with him or her.

120.   Secondly, paragraph 1 b criminalises the fact of a person engaging in sexual activities with a child, regardless of the age of the child, where use is made of coercion, force or threats, or when this person abuses a recognised position of trust, authority or influence over the child, or where abuse is made of a particularly vulnerable situation of the child.

122.   Under the first indent, where use is made of coercion, force or threats, lack of consent to the sexual activities can be inferred in cases where the child is over the age referred to in Article 18, paragraph 2.

123.   The second indent relates to abuse of a recognised position of trust, authority or influence over the child. This can refer, for example, to situations where a relationship of trust has been established with the child, where the relationship occurs within the context of a professional activity (care providers in institutions, teachers, doctors, etc) or to other relationships, such as where there is unequal physical, economic, religious or social power.

 

 

 

 

Extract from the Explanatory Report:

132.   A definition of “child prostitution” is provided in paragraph 2. The use of a child in prostitution can be occasional and any kind of remuneration or benefit, not only monetary payment (for example drugs, shelter, clothes, food, etc), whether given or promised, suffices in order to meet the legal requirements of the offence. In addition the remuneration or consideration, or promise of such, is not necessarily to the child but could be to a third party, such as those who take financial profit from child prostitution.

 

Extracts from the Explanatory Report:

133.   Article 20 on child pornography is inspired by the Council of Europe’s Convention on Cybercrime (Article 9 - offences related to child pornography) which aims at strengthening protective measures for children by modernising criminal law provisions to prevent computer systems from being used to further the sexual abuse and exploitation of children.

134.   In the present Convention, the offence is not restricted to child pornography committed by the use of a computer system. Nevertheless, with the ever-increasing use of the Internet this is the primary instrument for trading such material. It is widely believed that such material and on-line practices play a role in supporting, encouraging or facilitating sexual offences against children.

135.   Paragraph 1 a. criminalises the production of child pornography and is necessary to combat acts of sexual abuse and exploitation at their source.

136.   Paragraph 1 b. criminalises the “offering or making available” of child pornography. It implies that the person offering the material can actually provide it. ‘Making available’ is intended to cover, for instance, the placing of child pornography on line for the use of others 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.

137.   Paragraph 1 c criminalises the distribution or transmission of child pornography. “Distribution” is the active dissemination of the material. Sending child pornography through a computer system to another person, as well as the selling or giving of child pornographic materials such as photographs or magazines, is covered by the term 'transmitting'.

138.   The term “procuring for oneself or for another” in paragraph 1 d means actively obtaining child pornography for personal use or for another person, e.g. by downloading computer data or by buying child pornographic materials, such as films or images.

139.   The possession of child pornography, by whatever means, such as magazines, video cassettes, DVDs or portable phones, including stored in a computer system or on a data carrier, as well as a detachable storage device, a diskette or CD-Rom, is criminalised in paragraph 1 e. 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.

140.   Paragraph 1 f is a new element introduced in this Convention. It is intended to catch those who view child images on line by accessing child pornography sites but without downloading and who cannot therefore be caught under the offence of procuring or possession in some jurisdictions. To be liable the person must both intend to enter a site where child pornography is available and know that such images can be found there. Sanctions must not be applied to persons accessing sites containing child pornography inadvertently. The intentional nature of the offence may notably be deduced from the fact that it is recurrent or that the offences were committed via a service in return for payment.

141.   The term ‘without right’ allows a Party to provide a defence in respect of conduct related to "pornographic material" having an artistic, medical, scientific or similar merit. It also allows activities carried out under domestic legal powers such as the legitimate possession of child pornography by the authorities in order to institute criminal proceedings. Furthermore, it does not exclude legal defences or similar relevant principles that relieve a person of responsibility under specific circumstances.

142.   Paragraph 2 is based on the Optional Protocol to the United Nations Convention on the Rights of the Child. It defines the term “child pornography” as any visual depiction of a child engaged in real or simulated sexually explicit conduct, or any representation of a child’s sexual organs “for primarily sexual purposes”. Such images are governed by national standards pertaining to bodily harm, or the classification of materials as obscene or inconsistent with public morals. Therefore, material having an artistic, medical, scientific or similar merit, i.e. where there is absence of sexual purposes, does not fall within the ambit of this provision. The visual depiction includes data stored on computer diskette or on other electronic means or other storage device which are capable of conversion into a visual image.

143.   “Sexually explicit conduct” must be defined by Parties. It covers at least the following real or simulated acts: a) sexual intercourse, including genital-genital, oral-genital, anal-genital or oral-anal, between children, or between an adult and a child, 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 child. It is not relevant whether the conduct depicted is real or simulated.

 

Extracts from the Explanatory Report:

148.   Article 21 incriminates certain conducts relating to the participation of children in pornographic performances. Paragraph 1 a and b are elements relating to the organisation of pornographic performances involving children while c relates to the spectator. As with child prostitution and child pornography, the provision establishes links between the supply and the demand by attaching criminal liability to the organiser of such pornographic performances as well as the customer. Depending on States, this provision may also cover the situation of persons who are spectators of pornographic performances involving the participation of children through such means of communication as webcams.

149.   All the acts must be committed intentionally for criminal responsibility to attach. The term “knowingly” was introduced to emphasise the intentional nature of the offence which means that a person must not only intend to attend a pornographic performance but must also know that the pornographic performance will involve children.

 

Extracts from the Explanatory Report:

Article 23 introduces a new offence regarding the solicitation of children for sexual purposes (“grooming”), which was indented to reflect the increasingly worrying phenomenon of children being sexually harmed in meetings with adults whom they had initially encountered in cyberspace, specifically in Internet chat rooms or game sites. It requires Parties to criminalise the intentional “proposal of an adult to meet a child who has not reached the age set in application of Article 18 paragraph 2” for the purpose of committing any of the offences established in accordance with Article 18 paragraph 1 a or Article 20 paragraph 1 a against him or her. 

 

[1] http://www.conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=185&CM=8&DF=15/10/2009&CL=ENG

[2] http://www.conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=201&CM=8&DF=15/10/2009&CL=ENG