Child Pornography: briefing

WELFARE PORTFOLIO COMMITTEE
27 May 1998
CHILD PORNOGRAPHY: BRIEFING

Documents handed out:
South African Human Rights Commission Submission and Comments: Child Pornography, the Internet and the Film and Publication Act (Appendix 1)
Protection of Children Act 1978 as amended by Criminal Justice and Public Order Act 1994 effective from 3 February 1995 (Appendix 2)

SUMMARY
The discussion was on child pornography with urgent consideration of the new danger via Internet. Professor van Rooyen explained how the new Publications Act and Board intended to deal with the problem and explained why the Act passed in 1996 had never been promulgated because of the time it took to set up the Board and formulate the regulations. Professor Makula, Chairperson of the Board, confirmed that the delay was unavoidable. Various committee members made suggestions as to regulations to control child pornography.

Appendix 1:
South African Human Rights Commission

Introduction
The South African Human Rights Commission "the Commission" thanks the Portfolio Committee on Welfare for the opportunity to address the question of child pornography and the Internet, particularly in the human rights context.

Your invitation indicated that submissions could also respond to the recent cases on this issue. There appears to be some debate over whether the existing legislation, the Publications Act 42 of 1974, does or does not enable the prosecution of offences relating to the Internet. We do not wish to address this issue. Firstly, it is not appropriate to interfere with the functions of the Attorneys-General, and to second guess any internal review procedures which may or may not take place. However, the issue and the divergence of opinion show the need for a consistent approach and interpretation of the legislation, for the purposes of enforcement and prosecution.

In any event, the new Films and Publications Act will shortly commence, and will be the governing legislation in this arena, and accordingly our attention is directed at this statute. The recent cases have successfully thrown the issue into debate, but do not in themselves merit comment in this forum.

2. Background to submissions
2.1. The nature of the Internet
When assessing existing legislation, and its application to the Internet, two particular characteristics of the Internet must be taken into account:

* it functions simultaneously as a medium for publication, and as a medium for communications;

* it supports a variety of communication modes: one-to-one, one-to-many, many-to-many.

Users of the Internet move from being receivers of information, to providers of information, as quickly as they cross from the mode of publication, to private communication. The significance of this fluidity is that each mode has historically been governed by different legal regimes.

Pornography on the Internet is available from three categories of sources:

(a) World Wide Web pages (being the primary source) in the form of pictures and photographs, short animated films, sound files and stories; individuals and corporations may become "content publishers", and are available to any internet user who chooses to consult them, and are identifiable by an address, through which they may be accessed directly, or through hyperlinks.

(b) Usenet newsgroups; the content is provided by individuals who send messages and files, which can include encoded graphics, and are copied from one newsgroup server to another; host service providers will often keep such messages on their newsgroup servers for a limited period, because of enormous storage requirements; there are also sites on the World Wide Web where archives of newsgroup contents are stored and can be searched.

(c) Internet Relay Chat channels; these allow direct communication in real time between Internet subscribers, and may be used to organise face to face meetings, and exchange of content; these channels can now support low resolution video technologies.

(d) Electronic mail; communication between individuals, and the possibility of sending the same message and files or graphics to multiple addresses; in general the author of correspondence is identified by an e-mail address, although "anonymous remailer" systems exist, where the sender’s identity is not passed onto the recipient; the message are stored in the recipient’s mailbox on the mail server, until they are read by the recipient.

2.2. Harmful and illegal material
For the purposes of this discussion, a distinction must be drawn between content which is potentially harmful and content which is illegal. To conflate the two is both problematic and dangerous, as it can lead to action or policy which unnecessarily erodes freedom of expression and the right to privacy. More specifically, we must separate the issues of children accessing pornographic material for adults, and adults accessing pornography about children. While the former presents potential harm, and must be addressed through appropriate filtering or rating systems, the latter is clearly the more important issue, and forms the subject of this hearing.

While we are concerned with child pornography, it must also be borne in mind that other illegal material exists on the Internet affecting national security (instructions of bomb-making, illegal drug-production and terrorist activities), protection of human dignity (incitement to racial hatred or racial discrimination), and economic security (fraud, instructions on pirating credit cards), amongst others.

3. The Film and Publications Act 65 of 1996
This Act has not come into operation. The Department of Home Affairs indicate that the delay in its implementation has been caused by the delay in the setting up of a new Film and Publication Board. It has been indicated that the Act will commence during July 1998. This legislation will be responsible for addressing the issue of child pornography on the Internet.

The Commission’s recommendations concentrate on four areas of the Act. For ease of reference, and to assist in the submission of our recommendations, the relevant sections are paraphrased hereunder.

3.1 Schedule 1 – XX classification: definition of child pornography

* real / simulated visual presentation
* of a person who is / depicted as being under 18 years
* participating / engaging in / assisting another to engage in sexual conduct
* or a lewd display of nudity

3.2 Definition of "Publication"

"Publication" means:
… computer software which is not a film…

3.3 Section 27 – Possession

It shall be an offence to:
* Knowingly
* Produce / import / possess
* Child pornography as defined
* Unless the state fails to prove that the Board has not identified it as such.

4. Comments
The Commission wishes to make comments on the Act as it relates to three areas:
• production of child pornography
• possession of child pornography
• distribution of child pornography.

A brief contextualisation and comparative jurisprudence precede our recommendations.

4.1. Production
Before anything else, it must be notes that the primary concern of enforcement authorities should remain the prevention and prosecution of child abuse. Many examples of child pornography constitute a record of a criminal act, and the ongoing exploitation of children underlies discussion about its representation in the form of child pornography. As far as the Commission can establish the child pornography, which has received such wide attention, appears to have originated outside of this country. Accordingly the responsibility for the apprehension and prosecution of those involved in its primary production, will fall to the authorities in the relevant state.

However, there may be cases of child pornography being generated in this country, and with the growth of the Internet, this is sure to increase. Relevant resources and expertise must be allocated to addressing this issue.

In the United Kingdom, two recent developments in the legislation relating to child pornography have taken place:

(a) The Protection of Children Act (1978) was amended, on the recommendation of the Crown Prosecution Service to expand the definition of photograph so as to include photographs in electronic data form. The addition to the definition reads as follows;

"Data stored on a computer disk, or by other electronic means which is capable of conversion into a photograph."

This legislative innovation has been confirmed in an appeal matter, where the judge held that images stored on a computer disk constituted photographs for the purposes of the Act.

(b) A further development is the introduction of "pseudo photographs" into the text of the relevant legislation, the definition of which reads as follows:

"An image, whether made by computer graphics or otherwise, which appears to be a photograph.."

This addressed the production of child pornography that is created only with the use of computers, and which accordingly does not involve children in the production, thereby excluding any direct harm to children.

In the United States, a new definition of child pornography was introduced, which made reference to the depiction of an "apparent minor" (i.e. pseudo-photographs or the use of "youthful looking" over-age models). Having initially been upheld, this part of the definition has been struck down for being over-broad, in that it criminalises sexual images of children who are not real, or adults who simply look youthful.

In the South African legislation, the wording appears capable of interpretation to cover both the issue of "psuedo-photogrpahs" and computer generated data. The former may be covered by reference to a "simulated" visual presentation in the Schedule 11(a) definition. The further aspect of this definition is its similarity to the recently rejected American definition in terms of the subjective reference to presentations of someone "depicted as being under the age of 18". The American case has been taken on appeal, and may end up with the definition being upheld. In the event of the definition being challenged once the legislation comes into operation, the Commission believes that any limitation of freedom of expression, which may be entailed in the definition, would be justifiable.

The more important issue lies in the definition of "publication", and whether "computer software" is sufficient to cover the different permutations of availability of child porn from the Internet. It seems clear that entering a site on the World Wide Web must be distinguished from the actual downloading of the images, and their storage in some form.

The Commission requests that:

• The assurances of the Attorneys-General / National Prosecuting Authority, together with the State Law Advisors is provided that the existing definition of "publication" is sufficient to cover the various manners of accessing and storing child pornography from the Internet;

alternatively

• That an amendment to the Act be tabled and passed as a matter of urgency, introducing a further category to the definition of "publication" in order to cover child pornography available from the Internet

4.2 Possession
Relevant to the issue of distinguishing between the visiting of a site by an Internet user, and the downloading and storage of images from the site, is the question of possession. Certain processes on the Internet, or certain participation in newsgroups or relaychats can result in electronic messages being forwarded and received without knowledge of their contents.

For this reason, the British legislation includes in their defences to the offence of possession of an indecent photograph of a child, the following:

• "That he had not himself seen the photograph or pseudo-photograph and did not know, nor had any cause to suspect, it to be indecent,

• That the photograph or pseudo-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."

These provisions may be compared to the requirement in section 27, that the possession is effected "knowingly".

The Commission requests that consideration be given to:

• The sufficiency of the word "knowingly" in section 27 to cover certain forms of possession or whether statuary defences modeled on the British legislation should be incorporated into the Act.

4.3 Distribution
The definition makes reference to selling and hiring, both of which connote a certain level of economic advantage, in addition to public display. It is clear that child pornography can be distributed on the Internet without being sold or hired or publicly displayed. The definition expressly states that the ordinary meaning will not be derogated from, so it is possible that other forms of non-commercial distribution are incorporated under the definition.

The Commission requests that consideration be given to:

• The provision of assurance that non-commercial distribution is included under the definition

Appendix 2:
PROTECTION OF CHILDREN ACT 1978

As amended by the Criminal Justice and Public Order Act 1994
effective from 3rd February 1995

Section 1 (Indecent photographs & pseudo-photographs of children)

1. (1) It is an offence for a person-
(a) to take, or permit to be taken indecent photograph or pseudo-photographs of a child.
(b) to distribute or show such indecent photographs or pseudo-photographs
or
(c) to have in his possession such indecent photographs or pseudo-photographs with a view to their being distributed or shown by himself or others;
or
(d) to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs or pseudo-photographs. or intends to do so.

(2) For purposes of this Act a person is to be regarded as distributing an indecent photograph or pseudo-photograph if he parts with possession of it to, or exposes or offers it for acquisition by, another person.

(3) Proceedings for an offence under this Act shall not be instituted except by or with the consent of the Director of Public Prosecutions.

(4) Where a person is charged with an offence under subsection (1)(b) or (c), it shall be a legitimate defence for him to prove-
(a) that he had a legitimate reason for distributing or showing the photographs or pseudo-photographs or (as the case may be) having them in his possession;
or
(b) that he had not himself seen the photographs or pseudo-photographs and did not know, nor had any cause to suspect, them to be indecent.

(5) - (7) References to Children and Young Persons Act 1933; Visiting Forces Act 1952. [Protection of Children Act 1978, s1, amended by the Criminal Justice Act 1988, Sch 16 and the Extradition Act 1989, Sch 2.]

2. EVIDENCE
(1)& (2) repealed

(3) In proceedings under this Act a person is to be taken as having been a child at any material time if it appears from the evidence as a whole that he was then under the age of 16.

3. OFFENCES BY CORPORATIONS
(1) Where a body corporate is guilty of an offence under this Act and it is proved that the offence occurred with the consent or connivance of, or was attributable to any neglect on the part of any director, manager secretary or other officer of the body, or any person who was purporting to act in any such capacity he, as well as the body corporate, shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
(2) Where the affairs of a body corporate are managed by it's members subsection (1) shall apply in relation to the Acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

4. ENTRY SEARCH and SEIZURE
(1) The following applies where a Justice of the Peace is satisfied by information on oath, laid by or on behalf of the Director of Public Prosecutions or by a constable, that there is reasonable grounds for suspecting that, in any premises in the petty sessions area for which he acts, there is an indecent photograph of a child.

(2) The justice may issue a warrant under his hand authorising any constable to enter (if need be by force) and search the premises within one month from the date of the warrant, and to seize and remove any articles which he believes (with reasonable cause) to be or include indecent photographs of children.

(3) Articles seized under the authority of the warrant, and not returned to the occupier of the premises, shall be brought before a justice of the peace acting for the same petty sessions area as the justice who issued the warrant.

(4) This section and section 5 below apply in relation to any stall or vehicle, as they apply in relation to premises, with the necessary modifications of references to premises and the substitution of references to use for references to occupation.
[Protection of Children Act 1978,s4 as amended by the Criminal Justice Act 1988, Schs 15 & 16]

(5) FORFEITURE
No proposed change

(6) PUNISHMENTS
No proposed change. (Maximum penalty remains 3 years imprisonment on indictment and six months imprisonment on summary conviction.)

(7) INTERPRETATION
(1) The following subsections apply for the interpretation of the Act.

(2) References to an indecent photograph include an indecent film, a copy of an indecent photograph or film, and an indecent photograph comprised in a film.

(3) Photographs (including those comprised in a film) shall, if they show children and are indecent, be treated for all purposes of this Act as indecent photographs of children and so as respects pseudo-photographs.

(4) References to a photograph include-
(a) the negative as well as the positive version; and
2(b) data stored on a computer disc or by other electronic means which is capable of conversion into a photograph.

(5) 'Film' includes any form of video recording. [Protection of Children Act 1978,s7]

(6) 'Child', subject to subsection (8) means a person under the age of 16

(7) "Pseudo-photograph' means an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photo graph

(8) If the impression conveyed by a pseudo-photograph is that the person shown is a child, the pseudo-photograph shall be treated for all purposes of this Act as showing a child and so shall a pseudo-photograph where the predominant impression conveyed is that the person shown is a child notwithstanding that some of the physical characteristics shown are those of an adult.

(9) References to an indecent pseudo-photograph include
(a) a copy of an indecent pseudo-photograph: and
(b) data stored on a computer disc or by other electronic means which is capable of conversion into a pseudo-photograph

Section 24(2) of the Police and Criminal Evidence Act 1984
Offences under Section 2 of the Obscene Publications Act (Obscenity offences) and under Section 1 of the Protection of Children Act 1978 (child pornography offences) are added to the list of arrestable offences. Thus anyone reasonably suspected of committing or being about to commit such an offence may be arrested without warrant.
Section 85 of the Criminal Justice and Public Order Act 1994 provides that the same obscenity and child pornography offences are also added to the list of serious arrestable offences in Part II of Schedule 5 of the Police and Criminal Evidence Act. This enables the police to obtain warrants to enter and search premises for evidence of such offences, and to seize such evidence.

SECTION 160 CRIMINAL JUSTICE ACT 1988.

As amended by the Criminal Justice and Public Order Act 1994
effective from 3rd February 1995

SUMMARY OFFENCE OF POSSESSION OF INDECENT PHOTOGRAPH OF A CHILD
(1) It is an offence for a person to have any indecent photograph of a child or pseudo-photograph.

(2) where a person is charged with an offence under subsection above, it shall be a defence for him to prove-
(a) that he had a legitimate reason for having the photograph or pseudo-photograph in his possession;
or
(b) that he had not himself seen the photograph or pseudo-photograph and did not know, nor had any cause to suspect, it to be indecent;
or
(c) that the photograph or pseudo-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.

(3) A person shall be liable on summary conviction of an offence under this section to imprisonment for a term not exceeding six months or a fine not exceeding LEVEL 5 on the standard scale, or both.

(4) Sections 1(3), 2(3), 3 and 7 of the Protection of Children Act 1978 (c) shall have effect as if any reference in them to that Act included a reference to this section.

(5) Possession before this Section comes into force (d) is not an offence. [Criminal Justice Act 1988, 5 160]

Appendix 2

REPORT OF THE PORTFOLIO COMMITTEE ON WELFARE AND POPULATION DEVELOPMENT ON VOTE 38: WELFARE, DATED 12 MAY 1998, AS FOLLOWS:

The Portfolio Committee on Welfare and Population Development, having considered and examined Budget Vote 38: Welfare begs to report as follows:

The Committee acknowledges Cabinet's prioritisation of the Welfare budget among basic social services. For the 1998/99 financial year, the education, health and welfare budget votes account for 84.1% of the total provincial budget of R91.784 billion. The welfare budget vote comprises 20.1% (R18.434 billion) of the total provincial budget which is a substantial increase from 17.7% (R14.101 billion) of the total provincial budget in 1996/97.

The Portfolio Committee further acknowledges the increase in the consolidated Welfare budget from R13.3-billion in 1995/96 to R18.6-billion for the 1998/99 financial year, increasing to 0.7-billion in 2000/2001. Although this represents a substantial increase, the social security portion of the budget accounts for approximately 91.1% of the total welfare budget for the 1998/99 financial year. While this means that statutory obligations (social pensions and grants) may be secured, there is only 8.9% of the consolidated budget available for other welfare services.

The Portfolio Committee again impresses on Cabinet to separate the social security and social services components of the Welfare and Population Development Ministry, into distinct budget votes within this Ministry. In this way, the social services component will be rendered more transparent enabling adequate rather than residual funding, since it is this component of the Ministry that would be most instrumental in implementing the policies and plans of the White Paper for Social Welfare and the White Paper for Population Policy.

The President has dedicated his term of office to the children and youth of South Africa. The Department of Welfare & Population Development plays a lead role in many of the inter-sectoral programmes (listed below) aimed at addressing children's issues. Two issues which merit special mention here are street children and the HIV/AIDS epidemic.

At present there are an estimated 10 000 street children in South Africa. These children are vulnerable to gross forms of abuse including physical abuse and sexual exploitation. In the absence of any form of responsible adult supervision, many of these children fall prey to drug and substance abuse, or turn to criminal activities as a means of survival. Research must be done to determine the causes for the escalating number of street children in our country and adequate funding should be allocated to programmes (such as those identified in the National Plan of Action for Children), for the rehabilitation and reintegration of these children into their families and/or communities.

The time for Government to act on the looming tragedy of the HIV/AIDS epidemic is now. Statistics show that the most significant impact of HIV/AIDS is on the younger, reproductively and economically active sector of the population. Projected estimates reveal that by the year 2010, the effects of the HIV/AIDS epidemic will impact severely on our labour market and economy. The possible impacts on the Welfare sector are enormous. Many AIDS sufferers would become dependent on State grants as they become debilitated by AIDS-related diseases and are unable to work. Thousands of children would be orphaned by AIDS related deaths. Welfare responsibilities and programmes within the Inter-Ministerial Committee on HIV/AIDS (Chaired by the Deputy President), need to be clearly defined and implemented.

We have inherited Child Care legislation that is extremely fragmented and deeply flawed. On 12 May 1998, the South African Law Commission launched the First Issue Paper on the Review of the Child Care Act. This marks an important advance towards the establishment of a comprehensive and relevant new children's statute, one of the priority projects of the Department of Welfare. It is hoped that adequate funding would be allocated to this project to allow for the full participation of all stake-holders and organs of civil society, that it may culminate in the establishment of a very progressive and humane Child Care Act in the shortest possible time.

The fact that only 8.9% of the consolidated Welfare vote is allocated to the social services component, leaves little scope for increases in subsidies to non-governmental and community based organisations NGO's and CBO's) This may be particularly relevant in the historically under-serviced areas (mainly rural Black communities) where the delivery of services and programmes is heavily reliant on the NGO and CBO sector. If Government is to meet the need for services and programmes, the challenge is to shift expenditure to developmental social services, without jeopardising the much needed social security safety net.

The Department does envisage some degree of savings from the phasing out of the State Maintenance Grant and the clean-up of the SOCPEN 5 system. With regards to the amalgamation of the 14 different pension systems, the clean-up process of the amalgamated data, re-registration and Ghost Buster project initiated by the Department, the Portfolio Committee notes with interest, the following savings: Ghost beneficiaries -R24 360 186, expired temporary disability - R33 026 949, children over 18 suspended -R4 943 646 , other (duplicate payments etc.) - R17 879 441: Total - R80 210 222. Although the first priority for the allocation of these savings would be to address backlogs and deficiencies in social security, it is encouraging that the Minister for Welfare & Population Development has announced that such savings will be channelled as far as possible, into the social services and developmental programmes of the welfare function. This reflects the policy shift in welfare towards a developmental approach, as eloquently portrayed in the Aim of the National Department of Welfare "To develop a welfare system on a national level for the development of human capacity and self-reliance of all South Africans" as well as in the policies and plans outlined in the White Paper for Social Welfare and the White Paper for Population Policy. Such additional allocations to the social services component will increase the capacity to implement several priority programmes, including the National Programme of Action for Children, the National Crime Prevention Strategy, Programmes on the prevention of Violence Against Women and Children. the Transformation of the Child and Youth Care System, programmes targeted at the disabled, the mentally handicapped. HIV/AIDS victims and AIDS orphans. as well as educational support services such as early childhood education.

The 1998/99 budget identifies social security as the primary tool for poverty relief and income distribution in South Africa. Social Security expenditure is 2.5% of GDP and accounts for over 85% of each provincial welfare budget (with the exception of Gauteng -over 80%). Special provisions have been made in those provinces that have experienced substantial over-expenditures (Eastern Cape - 23.83%, Northern Cape - 18.48%, KwaZulu-Natal - 11.07% and Mpumalanga - 11.85%) in the 1997/98 financial year. These over-expenditures have been related primarily to the social security function. Examination of the final allocation by the National and Provincial Treasuries, show that the Eastern Cape, Northern Province. KwaZulu-Natal and Mpumalanga have been allocated respective increases of 36.4%. 16.2%, 18.8% and 25.1% in their welfare budgets for 1998/99. compared to final allocations for the 1997/98 financial year. In these provinces, the social security function accounts for over 90% of the total welfare allocation. Notwithstanding these adjustments. examination of the National welfare MTEF results (R20.255 billion) and the final national plus provincial allocations (R18.612 billion) suggest that the welfare function may be under-funded by approximately R1.643 billion for the 1998/99 financial year, increasing to a short fall of approximately R3.874 billion in 2000/2001. The allocated amounts in respect of the social security function may therefore be insufficient for the payment of social grants for the full financial year. This situation may further deteriorate with the increase in the social grant tariffs as from 1 July 1998 and possible increases in the number of social grant beneficiaries. This is largely due to the fact that increases in social grants are no longer part of the Top Slice, implying that provinces will now have to finance increases within the MTEF envelope. In this light. the Portfolio Committee supports the inclusion in the National Welfare Department's budget allocation of R100 million in each of the next two financial years for enhancing the financial management of social grants programmes.

Pensions for old age, disability grants and remittances are the main sources of income for over 40% of the poor (poorest 40%) and nearly 50% of the ultra-poor (poorest 20%). The social transfers reach communities which have historically been poorly provided with social services such as education and health. Old age pensions form the largest portion (58.9%) of the social security budget, followed by disability grants (25.8%) and child and family care (12.0%). While the Portfolio Committee acknowledges the enormous resource constraints on the Department, and further welcomes the increase in social grant tariffs, much concern is raised by the fact that grants have been increased by only 4.3% which is 2-3% lower than the prevailing inflation rate. The real decline in the value of the grants will impact heavily on poverty, particularly in rural areas. For new pensioners, the effect may be exacerbated by the fact that the maximum period for which the Regulations governing the Social Assistance Act allow back-pay to accumulate, is three months. Inefficiencies or technical difficulties causing delays in the processing of applications may result in beneficiaries having to forfeit payments accrued in excess of three months.

Government's aim to make social security accessible to all who need it, is further enhanced by the introduction of the new Child Support Grant. While severe financial constraints dictate that the amount of the grant is only R100 per month for a maximum of two children under the age of seven. per family, this grant will reach three million needy children over a five year period, as compared to the now repealed system of State Maintenance Grants which reached approximately 350 000 beneficiaries. The Portfolio Committee hopes that efficient administrative procedures will be put in place to ensure that this grant reaches the maximum amount of children targeted in each year. With the finalisation and implementation of legislation dealing with child maintenance by the Department of Justice, it is hoped that fewer parents will be dependent on the Child Support Grant in future and that this may allow for the tariff of this grant to be increased.

The Committee wishes to express its appreciation for the comprehensive presentation by the National Department of Welfare and Population Development on the Provincial Medium Term Expenditure Frameworks and budgets for the welfare sector for 1998/99 -2000/2001. We commend the Welfare Ministry on considering demographic factors in modelling the budget. creating a uniform budget structure across provinces and thereby establishing benchmarks for future budgeting; and minimising the potential for over-expenditure.