The Guardian carries a disturbing report on the exchange of indecent images between children.
The story comes from a Freedom of Information request submitted by the National Society for the Protection of Children to the police, which reveals that in the three years period between 2013 and 2015, some 2000 children have been reported for crimes linked to the possession, distribution, or production of indecent images of children.
Last year, a national debate began following the imposition of a criminal record on a 14 year old boy, who sent a naked image of himself by mobile phone to a female classmate. One commentator has said that the Protection of Children Act 1978 was made before mobile phones were invented, and that new rules are needed to avoid stigmatising and criminalising children. The NSPCC say that whilst children may see “sexting” as harmless fun, it can leave children vulnerable to blackmail, bullying or the attention of sex offenders.
What is the criminal law in this area?
The law for the protection of children in this area, is a great deal older than may be first thought. The Obscene Publications Act 1857, and its successors the 1959 and 1964 Acts may have had as their primary purpose, the protection of the public from any material that might “deprave and corrupt”, but they could and still are applied to child pornography offences. The original 1959 and 1964 Acts have been updated to deal with internet offences and they are still used in prosecutions.
The first specific mention of child pornography in statutory legislation appears in the Protection of Children Act 1978, which created the offence of taking or permitting to be taken an indecent photograph of a child. This is now the main means by which persons making or possessing child pornography are prosecuted. The 1978 Act has been extended by subsequent statutes, the Criminal Justice and Public Order Act 1994 and the Sexual Offences Act 2003. The 2003 Act created the offence of voyeurism, together with the offences of abusing children through or exposing them to pornography. It also contains an offence of “grooming” which is aimed at the grooming of children over the internet by means of “chat rooms.” More recently the Coroners and Justice Act 2009 created a new offence of possession of a prohibited image of a child.
Section 1 of the Protection of Children Act 1978 contains no mention of motive. If you possess or distribute an indecent photograph, that’s a crime. Contrast that offence with Section 1 of the Malicious Communications Act 1988, which makes it a crime to send an indecent electronic communication if the perpetrator’s purpose is to cause anxiety or distress to the recipient. One solution might be to amend the Protection of Children Act 1978, so as to allow a defence of harmless “motive” and restrict the defence to children under 16. The problem there is that if a 16 year old sends an indecent photograph to a 13 year old, it might be very difficult to prove an offence, in what might well have been the beginning of a campaign of sexual harassment. The alternative would be to keep the law as it is, and let the message go out to children in our schools.
It is now perfectly possible to sue someone for damages for encouraging you to send indecent images of yourself to another person, and exchanging text messages of a sexual content, as was demonstrated in or ABC v West Heath 2000 Limited and Another  EWHC 2687 (QB) which followed a UK Supreme Court decision, Rhodes v OPO  UKSC 32.
The civil courts now have a rich precedent of cases on the use or abuse of imagery.
Developments in the United States
This problem of sexual imagery has also been addressed in the United States, which enacted within the Violence against Women Act 1994 a section entitled the Mandatory Restitution for Sex Crimes. This mandates the issue of a restitution order for victims of all acts of sexual exploitation. An order for restitution directs the Defendant to pay the victim the full amount of the victim’s losses as determined by the court, which includes medical treatment, lost income, legal costs and any other losses.
In the case of United States v Hesketh the Defendant, a former Pfizer executive had pleaded guilty to possession and distribution of child pornography, although he himself had not participated in the sexual exploitation that produced the material. The victim “Amy” had been notified by the authorities that her picture was amongst those found in his possession and she applied to the court for compensation for the effect that his criminal behaviour had on her. The court made a restitution award of $130,000 in her favour following a negotiated settlement with the Defendant. Amy went on to receive further larger awards from other courts in the United Courts, when her image was discovered in the hands of other Defendants.
Unsurprisingly great concern has been expressed about the implications of these judgments. The original 1994 Act defines a “victim” as an “individual harmed as a result of a commission of a crime” but it does not appear to require that the victim be a person “directly and proximately harmed”. Therefore it is arguable that any kind of “harm” resulting from a qualifying offence is sufficient to create victim status. However other courts in the United States have held that there has to be some kind of causal connection between Defendants who possess pornographic images of children and the victims.
The liability of internet service providers
ISP’s have been well aware for some time of the risks of prosecution and/or civil liability for facilitating child abuse imagery. For this reason they formed the Internet Watch Foundation (IWF) in October 1996, which is funded by the European Union. Its aim is to restrict criminal content on the web, and it has succeeded in reducing potentially illegal content being hosted in the UK to less than 1 per cent. It also works with the Child Exploitation and Online Protection Centre. Most ISP’s are members of the Internet Service Providers Association and according to the ISPA Code of Practice, all member are obliged to register with the IWF. The Electronic Commerce (EC Directive) Regulations 2002 provide ISP’s with a defence to any criminal liability under the Obscene Publications Act 1959 and the Protection of Children Act 1978, providing certain matters are established.
Website forums and social networking sites provide the potential for children to be groomed and abused by paedophiles, or for inappropriate images to be posted that might distress a child. In theory a common law duty of care might lie on a website that catered for children as registered users, and that duty might be breached if for instance there were no means of reporting inappropriate activity, no appropriate age restrictions, no warnings against giving out personal information nor links to sources of help and advice. Causation and foreseeability are bound to be problematic in case of grooming and the defences available under the 2002 Regulations could in theory be utilised in a civil case. There is a reported case from Texas where a claim for negligence against “MySpace” for failing to institute safety measures to protect minors was dismissed. This case involved a child who met up with an abuser through the site, having lied about her own age on joining.
In addition, there may be some kind of contract between the website owner and the users, which gives the website owner some degree of control over those user, but it is doubtful whether such “control” would found a claim in negligence or contract, where a user abuses a child. In relation to any claim for defamation, the Defamation Act 1996 and the 2002 Regulations now give an ISP a defence to any action for defamation brought against it as a “publisher” although the website site might attract some liability.
The sending of an indecent photograph might well sound like innocent “fun” but regrettably it carries serious echoes of the kind of excuse put out by adult child abusers when they are finally caught. Few parents would approve of their child being sent such a photograph by another child. The question is how we deal with the issue going into the future.
Malcolm Johnson, Specialist Child Abuse Lawyer