Child pornography: Defences, protection and the dangers

April 30, 2003

The nascent Scots jurisprudence of computer criminology has recently witnessed the acquittal of a former Glasgow University lecturer, Stephen Whitelaw, who was charged with being knowingly concerned in the fraudulent evasion of a prohibition on the importation of obscene articles, or an alternative charge of possessing indecent photographs of children. Mr Whitelaw was returning from a seminar in the USA where he had just delivered a lecture on his work in internet security.

Sheriff Neil Douglas, sitting at Paisley Sheriff Court on 6th February 2003, acquitted Mr Whitelaw after accepting a defence that a CD-ROM found and not declared in his luggage in April 2001, and which contained 16 admittedly indecent pictures of children, was material intended for the database of files created by his firm to help companies combat inappropriate use of the internet by staff. Mr Whitelaw’s firm has a product called NetIntelligence, a software application one of whose functions is designed to alert employers if staff are accessing porn, and which depends for its effectiveness upon a frequently updated database of pornographic images. The Sheriff, so far as one can glean from the press reports, accepted in these circumstances that Mr Whitelaw had a legitimate reason to be in possession of the pictures, and said there was no evidence that he had an “unhealthy interest in paedophilia”.

Mr Whitelaw’s company told the court that it had sought guidance on its legal position from the Crown Office, and accepted it had been made very clear in reply that Mr Whitelaw might be prosecuted if found in possession of child pornography images.

The Sheriff is reported as having said that, although it was the duty of the prosecution authorities “to challenge legitimate reasons for possession of such images and to bring a measure of scepticism” in their inquiries, nevertheless the facts in Mr Whitelaw’s case were “wholly exceptional if not wholly unique”.

Pornography in the workplace

Employers are under immense pressure to protect staff from exposure to harassment together with sexual and racial discrimination. Exposure to ribald male humour and/or pornography is now a regular ground for complaint in Employment Tribunals. As a further worry for employers, the law in Scotland was changed in the late 1980s to bring it into line with England, so that mere possession of child pornography became an offence. There is a ready market for applications whose use may enable employers to demonstrate to a tribunal their use of best practice in this sensitive area. However, Mr Whitelaw on the face of it could not claim to be breaking entirely new ground. There have been for at least three years a number of porn detection products on the market. A current example is As long ago as June 2000 the American educational Web site Heartsoft was beta-testing a porn detection product. These two solutions used skin tone detection. Another approach is taken by whose SkyScan AP product uses artificial intelligence and some 22,000 algorithms to detect such content as suspect poses, facial expressions, clothing and overall image content.

NetIntelligence, according to its Web site, differentiates its approach from all the above by the use of “a proprietary database of 20 million fingerprinted files of inappropriate content and threatening applications that is constantly updated at the rate of over 1 million items per month”. That is understood to be a database containing the individual electronic signatures (the latter term used here in the same sense as the identifying “signature” of a virus and nothing to do with PKI-type digital signatures) of all the individual pornographic image files that become available over the Internet. The images Mr Whitelaw attempted to bring into the UK were presumable intended for use in, or already part of, that database. The question is whether his possession of them is legal, whether the keeping of such a database is legal in the UK.

Possession and defences

The applicable law is actually quite elderly in IT terms. Section 161(1) of the Criminal Justice Act 1988 inserted a new s 52A into the Civic Government (Scotland) Act 1982 as follows:

“Possession of indecent photographs of children.

52A.—(1) It is an offence for a person to have any indecent photograph of a child (meaning in this section a person under the age of 16) in his possession.

An accused person may defend a charge under section 52A(2) where he or she can prove –

(a) that he had a legitimate reason for having the photograph in his possession; or

(b) that he had not himself seen the photograph and did not know, nor had any cause to suspect, it to be indecent; or

(c) that the photograph was sent to him without any prior request made by him or on his behalf and that he did not keep it for an unreasonable time”.

One assumes that Mr Whitelaw’s defence was under s 52A(2)(a). So – is evidence that one’s actions are justified effectively by the need to carry out research and development on a product that may benefit society as a whole a sufficient excuse? We might note in passing that a genuine belief in one’s actions as being non-criminal by virtue of amounting (in effect) to an accepted industry norm has not been sufficient to avoid a finding of the requisite mens rea at least since Sheriff J Irvine Smith’s masterful decision in Herron v Diack & Newlands 1973 (Sh Ct) 27. This is the famous case of a botched burial at sea and the thrice- reappearing cadaver, where an accused undertaker’s evidence that in certain circumstances his profession was entitled to disregard the wishes of a deceased was rejected.

There is presently no legitimate commercially available database of the electronic signatures for pornographic images. Law enforcement agencies around the world including the UK are known to hold this type of data but, not surprisingly, are unwilling to make it publicly available, leaving the unpoliced Internet as the only source. Is the answer perhaps a scheme of licensing as one finds in relation to firearms and dangerous drugs? Society no doubt wishes to be able to eliminate these images at source as it were, pointing to the desirability of available and effective filters. But the law enforcer’s approach, constrained by available resources (at least for the forseeable future), is likely to remain one of operationally focused detection not prevention, such that the preventive tools inevitably will fall to be developed in the private sector. Therefore, does not commerce have some role to play? If we accept that, how else is this to be translated into the development of effective and affordable products other than by the State affording controlled access to such material for testing purposes, however otherwise abhorrent the commoditisation of these images – even on a rigidly licensed basis – might be? Sheriff Douglas seems to have recognised this dilemma.

Downloading is a crime in its own right

For the sake of completeness it should be noted that downloading a pornographic image of a child (as opposed to carrying images on a CD-Rom) has also been a crime in Scotland since 1994. By s 84 of the Criminal Justice and Public Order Act 1994, s 52(1)(a) of the Civic Govt Scotland Act 1982 was also amended to criminalise “Any person who takes, or permits to be taken or makes any indecent photograph or pseudo-photograph of a child…..” S 52A of the 1982 Act was amended to penalise the mere possession of pseudo-photographs as well as photographs (s 84(7) of the 1994 Act).

In Longmuir v HMA HCJ 25th February 2000 the appellant submitted that the primary purpose of the amendments to s 52 had been to deal with a particular problem that had arisen from the advent of the computer, namley the use of computers for the creation of indecent images of children by means of computer-graphics and the like which did not rely simply upon the taking of actual images of children onto film. The mischief struck at was, he said, explained in the course of a written answer in the House of Commons given by Mr. David MacLean, Minister of State, to a question for the Secretary of State for the Home Department (Hansard H.C. 7 December 1993, vol. 234 col. 161) where it had been said : “We propose to extend existing legislation so that it will cover simulated child pornography manufactured on computer and to make other important changes to the law as it affects computer pornography”.

The court, in rejecting that submission, found that Parliament had now also defined a photograph by reference to a process distinct from the taking of a photograph which produced a negative as well as a positive version. There was no reason why a “pseudo-photograph” should be limited to the operation of creation of that pseudo-photograph by the person charged.

Technology has advanced in leaps and bounds, certainly since 1988 and even since 1994, when the internet and broadband were still terms unknown to the general public. It is undesirable that research and development in this highly emotive area should remain a state monopoly. Industry product developers and those advising them need to know they can obtain proportionate amounts of material legitimately and how the law permits them to make use of it. The press have suggested the Crown may be considering an appeal against Mr Whitelaw’s acquittal. On a matter of this importance, it is respectfully suggested that clarification should be given by Parliament.

Paul Motion, Partner, Ledingham Chalmers, Edinburgh.