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The United Nations Convention on the Rights of the Child dedicates its article 34 to the battle against child pornography and, more precisely, against all forms of sexual exploitation and sexual abuse.
What states condemn cannot be tolerated by the world of the Internet on the pretext of the novelty of the medium and freedom of expression.
If you contest something, you first need to understand. That is why, in the first part, in order to grasp the problem, we are going to lay some bases we wanted above all to be educational, completely free of technical, legal and sociological jargons.
First, child pornography is an intuitively simple notion, regarding which there exists a broad moral consensus, and which has quickly proved complex for those eager to regulate it. Indeed, beyond the terms lies the question of the definition of a child in our society.
Secondly, the Internet, a fantastic means of communication and knowledge. The Net is a complex multifaceted network that everybody has to know in order to be able to exercise their citizens' responsibilities in respect of it. Too often, this complexity serves as a pretext for the inertia of laws and men. Such a complexity probably exists, but before saying it is impossible to act, we first have to know.
Defining child pornography is a complicated task since its definition is closely linked to the national contexts and moral criteria which rule them. Moreover, this term is based on the concept of child which must be defined first.
1.1.1. What is a child ?
There are probably as many definitions of child as of the disciplines which study the subject. Psychologists put forward some criteria relating to psychological maturity and development, biologists prefer the criteria of body development, moralists and philosophers are in favour of notions of conscience and freedom of consent.
All these definitions are of interest and permit an approach to children from their multiple specificities. However, the limits of such definitions must be stressed when tackling a question like child pornography. These definitions are extremely relative and depend on every child. Biological maturity, for instance, can be reached as soon as 10 in some children, around 14 or 15 in others. Besides, these definitions are partial and only permit an approach to children in separate levels which are not necessarily coordinated. For example, a child may have reached biological maturity without being mature from a psychological or moral point of view.
It is therefore dangerous to use such definitions to regulate the question of child pornography. More seriously, some definitions like those relating to biological maturity can be used to legitimize a number of sexual practices committed on children, under the pretext that they are bilologically mature. This is how some sexual tourists in countries such as Cambodia, Thailand or Vietnam justify their deviation by the so-called biological precocity of the children. These arguments contain not only a latent racism but also a false legitimization of practices whose illegality is known, consciously or not, by abusers.
Confronted with the limits of the definitions, and with the sole aim of protecting all the children, whatever their psychological, biological or moral singularity, the lawmaker considered it a good thing to standardize the concept of childhood taking into account the only criterion that can be considered as objective, and thus opposable to everyone, namely the age. Even if we question the aptness of a project intended to standardize the notion of childhood according to one single criterion, this solution seems to be the only way to guarantee the same rights to all the children.
Having set the criterion of age, we must now determine the limits of sexual maturity, the age at which the lawmaker considers that a person can give free consent to sexual intercourse with other people. There comes up the question of inequalities between "children", according to their countries of origin. Though the United Nations, in their international convention, have set the limits of childhood quite high since they define the child as a minor under 18, these limits are much lower in other countries and show major disparities, even in the European Union (see table 1).
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1.1.2. What is child pornography ?
Before going further, we should clarify the concept of paedophilia in relation to child pornography since MAPI stands for Anti-Paedophilia Movement on the Internet. Is there a misnomer or a confusion between two phenomena that should be considered separately ?
As remarked by M. A Healy from ECPAT, End Child Prostitution in Asian Tourism (1996)4 , all depends on the definition given to the term "paedophilia". Some people, such as the members of the American Association of Psychiatry, describe paedophilia as a mental disorder in which adults are sexually attracted to prepubescent children. However, this restrictive definition tends to medicalize the phenomenon and to ignore the development of a big sex market involving children and whose consumers are not all diagnosed as phychiatric. For this reason, today many experts define paedophilia as the behaviour of an adult sexually attracted to people legally considered as children. By their attitudes, these adults contribute to the production and development of the market of child pornography.
This is precisely the market denounced by MAPI. By its action, MAPI wants to fight against all materials encouraging paedophilia and endangering the integrity and dignity of children. This is the material we commonly call "child pornography". In August 1996, at the Stockholm congress on child sexual exploitation, experts looked into the definition of child pornography. As remarked by M. A Healy, this definition is also complex and very different according to the countries.
Nations such as the United States consider there is child pornography when a child is effectively abused or sexually exploited. Other nations have a much broader concept of child pornography, by referring to any material which contains sexually explicit images of children. This definition has been adopted by ECPAT which judges that this type of material undermines the children's dignity and may put them in danger by its production and diffusion.
However, we should once again emphasize the limits of a definition which puts the accent on images and does not take into account any other material. During its research, MAPI came across many texts and accounts severely damaging the children's dignity and integrity, and encouraging child sexual exploitation. For this reason, it is necessary to adopt a broad definition of child pornography, namely, any material involving children performing in sexually explicit situations or inciting the sexual abuse of children.
A broad definition is important as regards the children's protection and dignity. As M. A Healy rightly observes, some people consider that the diffusion of pornographic images involving children should not be punished since no effective damage is done to children through this process of diffusion. The author disapproves of this point of view for two major reasons. First, where child pornography exists, there is necessarily a child victim in the beginning of the process. Even in the case of faked images superimposing childrens'faces on adults'bodies, the children shown on these pictures can suffer psychological and moral damage. The second reason concerns less the victims of such material than its consumers. The existence and diffusion of pornographic material to young people among others can lead them to consider child pornography as the norm. Such a statement presents behaviour which severely harms the children's dignity and integrity. At this level, the application of child pornography's definition to other materials than images is important because, in this process of normalization, texts and accounts, less directly shocking and sometimes very well argued scientifically, can have effects much more harmful than images.
It is important to know the lawmaker's attitude towards these definitions and the interest they present. Since April 13th, 1995, Belgium has a specific law dealing with child pornography5 .
CHAPTER II - Child pornographyThe reading of Article 383 leads to several comments. First, it includes the behaviour of all those involved in the market of child pornography, from producers to intermediaries or mere consumers. From this point of view, Belgian law seems perfectly suitable to fight against the expansion of a market where suppliers and demanders meet to exchange pornographic material. In addition, by including in this material the terms "other visual material"(in bold in the text of law), the present text seems large enough to embrace the diffusion of this sort of material via the Internet, though it remains open to different interpretations. At this stage, however, the vagueness of the Belgian law is regrettable as it could be easily manipulated by skilful lawyers. This law also seems incomplete as far as the question of service and access providers is concerned. Finally, Belgian legislation, like many European laws, mainly focusses on visual material, neglecting any other material whose extremely dangerous aspect has been mentioned above.7. Article 383bis, worded as follows, has been added to the criminal code:
"Art. 383bis. (1) Without prejudice to the application of Articles 379 and 380bis, whoever displays, sells, rents, distributes or delivers emblems, objects, videos, photographs, slides or any other visual material which represent pornographic or sexual
acts, involving or presenting minors under the age of 16, or whoever, with a view to trade or distribution, produces or possesses, imports or has someone import, or delivers this type of material to a forwarding or distribution agent, shall be sentenced to prison and shall be fined between five hundred and ten thousand francsb .
(2) Whoever deliberately possesses emblems, objects, videos, photographs, slides or any other visual material stipulated in section 1, shall be sentenced to imprisonment for a period lasting from one month to twelve and shall be fined between one hundred and one thousand francs.
(3) The offence stipulated in section 1 shall receive a sentence of ten to fifteen years' hard labour and shall be fined between five hundred and fifty thousand francs, if it proves to be an act of participation in the main or subsidiary activity of an association, whether the defendant is or not the director of the association.
(4) The special confiscation provided for in Article 42 (1) is applicable to offences stipulated in sections 1 and 2, even if the owner of the objects confiscated is not the defendant.
(5) Article 382 is applicable to offences stipulated in sections 1 and 3.
To answer this last criticism, we can refer to the Act of March 27th, 19956 which punishes the advertising and/or distribution of pornographic materials involving or not minors:
1. Article 380quinquies, worded as follows, has been added to the criminal code:This law, and its last section notably, seems to be more suitable to deal with the diffusion, via the Internet, of child pornography, whether it is in the form of texts or images. Nevertheless, the law only takes into account the producer or transmitter of advertising inciting the sexual exploitation of minors, and the intermediaries who diffuse this type of information, leaving aside all "passive" consumers without whom the child pornography market would not exist !"Art. 380quinquies.- (1) Shall be sentenced to imprisonment for a period lasting from two months to two years and shall be fined between two hundred and two thousand francs, whoever, whatever the means used, produces or has someone produce, publishes, distributes or diffuses advertising, directly or indirectly, even by hiding its nature with tricks of language, for an offer of sexual services with a view to making profit, directly or indirectly, when this advertising is specifically intended for minors or when it presents services offered either by minors or persons supposed to be underage.
The sentence shall consist in imprisonment for a period lasting from three months to three years and shall be fined between three hundred and three thousand francs when the advertising stipulated in Article 1 is aimed at or has the effect of facilitating the prostitution or sexual exploitation of a minor, directly or indirectly.
(2) The sentence shall consist in imprisonment for a period lasting from one month to one
year and shall be fined between one hundred and one thousand francs, whoever, whatever the means used, produces or has someone produce, publishes, distributes or diffuses advertising, directly or indirectly, even by hiding its nature with tricks of language, for an offer of sexual service with a view to making profit directly or indirectly, when this service is offered by telecommunication means.
(3) In the cases which are not provided for in sections 1 and 2, shall be punished with imprisonment of one month to one year and shall be fined between one hundred and one thousand francs, whoever, whatever the means of advertising used, even by hiding its nature with tricks of language, makes known that he/she prostitutes him/herself, facilitates the prostitution of other people or wants to enter into contact with a person who practises prostitution.
Similar sentences are applicable to whoever, whatever the advertising means used, encourages the sexual exploitation of minors or adults, by alluding to it, or uses such advertising in offering services."
* Concerning the children's rights
To guarantee the same rights to all children, Belgium has to urge the European Union towards harmonization of the childhood age in respect of all children. This harmonization cannot be done "downwards", but must necessarily take into account psychological and moral criteria relating to freedom of consent.
The European Union should ask the same of the United Nations in order that all the signatories to the International Convention on the Rights of Child respect all its clauses. In addition, the European Union should urge the United States and Switzerland to ratify this convention.
Through its action, Belgium, as well as the European Union, must keep in mind that lowering the age of sexual maturity will inevitably result in the reduction of children's protection.
* Concerning the legislation on child pornography
The two laws previously mentioned should be presented in an "educational" way to Internet users and access and service providers in Belgium.
To avoid all restrictive interpretations of Article 383bis, it should include "non-visual" material of child pornography and explicit allusions to the distribution and use of child pornography via the Internet.
To make every participant in the child pornography market aware of their responsibilities, Article 380quinquies should provide for a sentence applicable to the beneficiary of the advertising which is referred to.
This section aims to make the reader familiar with the Internet and, more specifically, with the concepts and terms used in connection with the Net's main services. After a brief look at the Internet's background, we turn to the electronic mail, the World Wide Web, the News, BBSs and the IRC. Finally, we define the concept of "provider" and comment on the various aspects involved.
1.2.1. Background
The Internet is the mother of all networks. It has its origins in the ARPAnet which was the U.S. Defence Department's network. At the beginning, in 1969, ARPAnet was strictly used for military purposes, but given the interest shown by scientists, it became more open to include, in the eighties, the whole scientific community.
Later on, the U.S. National Science Foundation decided to create the NSFnet to allow the Internet, which was becoming overloaded, to expand. Today, the NSFnet still constitutes the backbone of the network.
Since then, a huge number of networks (scientific and commercial) have connected to the NSFnet, leading to an exponential increase in the number of computers interconnected thanks to the Net. Interconnected computers grew from 1,800,000 in 1993 to 12,900,000 in 1996. The world average growth rate is 100% (150% in Europe). We can expect more than 100,000,0007 computers to be interconnected by the year 2,000.
1.2.2. Electronic mail
E-mail (electronic mail) is a service which channels written messages from a sender to an addressee via the Internet. It is a communication from one point to another (a point to point communication). It works exactly like normal mail. To send a message to a person connected to the Net, you just have to know his/her e-mail address. The message sent via a suitable software is channelled through the network up to the addressee's e-mail via relays which could be compared with sorting offices.
This is what an e-mail address looks like: mapi@info.fundp.ac.be. mapi is the name of a user belonging to a sub-network (info.fundp, which is that of the Institute of Informatics of the FUNDP); this part of the address could be compared with the name of a place. ac.be means that it is the address of an academic institution (ac) in Belgium (be).
As for the addressee, he receives the message with a header containing, among others, information on the message sender's identity (his/her e-mail address) and on the computer used to send the message.
Return-Path: <Pierre@info.fundp.ac.be>In theory, this information makes it possible to identify the user who has sent the message. However, identification can be evaded. The most "effective" way to bypass it is to send one's message via an "anonymity site", a system which can be illustrated by the following figure:
Received: from [138.48.32.115] by leibniz.info.fundp.ac.be (SMI-8.6/SMI-SVR4) id OAA23776; Mon,6 Jan 1997 14:27:07 GMT
Date: Mon, 6 Jan 1997 14:27:07 GMT
Message-Id: <v0213050caef6bc12448b@[138.48.32.115]>
To: mapi@info.fundp.ac.be
From: Pierre@info.fundp.ac.be
Subject: Plan du rapport
The site of anonymity receives the message to be transmitted, erases all information relating to the sender's identity, saves this information in a table in which it makes the information correspond with an identifier. The latter is thus to retrieve the address to have a possible answer forwarded. The modified message is then sent to the addressee who can no longer identify the sender. Such a site can be used by malicious people, paedophiles among others, to send messages anonymously. Nevertheless, the very existence of these anonymity sites is controversial and a certain legal vagueness prevails with regard to them8 .
1.2.3. News, forums or discussion groups
a. Definition and background
The News, also known as newsgroups, is defined as a system of discussion distributed throughout the world, which embraces several discussion groups named and classified according to a hierarchy (rubrics), in which system users can post messages (articles) spread by News servers (cf. point 1.2.3.b. Basic principles).
Thus the News system uses the Internet to diffuse electronic messages. It could be compared with classified advertisements. Indeed, posting a message into a specific rubric requires that the message be sent to a News diffuser (called News server) which could be compared with the classified adds column in a newspaper. Once the message is diffused, any Internet-connected user can read it by logging on to a News server which lists the rubric in question, and by searching for it in the list of messages posted into this rubric.
The analogy stops here, because for the News, only certain rubrics are monitored (posted messages are checked, often willingly, before being published). These rubrics are named moderated. All the other rubrics are not subject to any control and everything can be found in them (the worst as well as the best).
To give an idea of the current proportion of moderated and non-moderated rubrics, it should be known that out of 7 main moderated hierarchies9 there are more than 400 non-moderated prinicipal hierarchies (for a description of hierarchies, see point b.2. on the hierarchy of discussion groups) and the total number of newsgroups is estimated at about 19,000. In the case of moderated rubrics, the moderator could be compared to the person in charge of a newspaper's classified advertisements.
In addition, the moderator is responsible as soon as his rubric is created. To this end, the person in charge of the News server where the moderated rubric has been created appoints a moderator (usually, after a discussion with him and with his consent) who will receive all posted articles and will have to decide on their possible publication under the rubric for which he is responsible.
The News allows anyone logged on to the Internet to reply to a specific message. To this end, either the person posts a message himself under the same rubric or he directly replies to the message's author by sending an e-mail to him, provided the latter gave his real electronic address.
b. Basic principles
b.1. From client to server
The basic principle of the News system is based on the client/server model.
When a client posts a message on a server, the message physically appears on this server only. Yet, as stated previously, the News is a worldwide discussion system. Actually, the spread of the message throughout the Net is guaranteed by a mechanism which works as follows:
When someone wants to install a News server, he installs the proper software on the server computer and can later subscribe his server to an existing server. To this end, he selects the rubrics he wants to appear in his server and subscribes the latter to these rubrics. At the same time, the new server warns the existing server that it subscribes to the selected rubrics. As soon as a new message is posted into one of these rubrics on any of the two servers, it is automatically sent to the other server.
It is important to note that the subscription we have just mentioned is totally different from the one we have referred to when talking about the client. Indeed, the subscription of a client to a certain number of rubrics on a particular server will only make the rubrics appear to which the client has subscribed. On the other hand, a server to server subscription automatically makes all the new messages of the selected rubrics pass from one server to the other. On a large scale, this system allows the messages to be transported among all Internet-connected News servers. Figure 2 represents the News' way of working.
b.2. The hierarchy in discussion groups
Hierarchically classified rubrics have been mentioned earlier. This characteristic of the News' system classifies a large number of topics according to several themes, making their searching and management easier. The main hierarchies (there are 400) are subdivided into subsets which, in their turn, can be subdivided and so on.
b.3. The search for information in newsgroups
Different tools such as DejaNews, Yahoo or Altavista are used to make searches in discussion groups, from keywords. Such tools enable, among other things, in all posted messages, those containing a specific character string, such as "MAPI", to be found. This kind of search is very useful and, besides, often used because of the multitude of discussion groups (there are 19,000) and the amount of messages posted on them everyday.
1.2.4. The World Wide Web (WWW)
At present, the most famous "Internet service" is undoubtedly the World Wide Web, often called the "Web". What does this application actually stand for ? To go on with comparisons, the Web could be compared to a bulletin board in a close place. Everyone having access to the place can read what is posted on the board. Some people having access to the room can also post messages on the board. These people are allocated part of the board by a guard. In our example, the Web would be the bulletin board, the people having access to the closed place would be the users connected to the Internet somehow or other, and the guard would be a service provider or, more precisely, a host provider (see point 1.2.7.).
It should be pointed out that additional functionalities allow the access to certain parts of the Web to be restricted to some users. Then, the user eager to reach these parts has to prove he is a particular user who precisely has access to these parts (for instance, by typing a password).
a. Definition and background
WWW can be defined as an Internet service responsible for convivially putting information of any kind at the disposal of all the people connected and/or by all the people connected. It is not necessary at all to be an accomplished computer scientist to put information on the Web.
The availability of this information is ensured by the communication protocol HTTP (Hyper Text Transfer Protocol). Hypertext layout (which will be discussed later) presents the information in a convivial way. The applications allowing people to browse on the Web are usually called browsers.
The Web was created in 1989 at the European Centre for Nuclear Research (ECNR) in Geneva, at a time when the HTT Protocol was being developed. It achieved real success by 1993, when the traffic of data and the number of connected computers began to experience an exponential increase. To give an idea of this development, it would be interesting to have a look at some figures10. In 1993, an estimated 6 billion bytes11 a month channelled through the main Internet backbone (former NSFnet; see point 1.2.1.); only a small number of these bytes were effectively used for the Web. In 1996, 60 billion bytes pass every month through this backbone, of which 20 billions are used for the Web.
b. Basic principles
b.1. From client to server
Just like the News, the Web works on the client/server principle.
b.2. Notions of page, hyperlink and hypertext
A Web page is all the information that can be seen (totally or not) on the client's screen. The information present on a page is structured by the HTM language and can contain hyperlinks.
A hyperlink is a reference to another page and is itself located on a page. Then the user just needs to click on this hyperlink to access the next page it refers to and to display its content. Hypertext is then used to refer to a text containing hyperlinks.
b.3. Creation and diffusion of pages
Pages are created by the user who has been allocated a disk space on a server by a service provider (see point 1.2.7.). The creation of pages requires the user to format the information he wants to make available, using the HTM language. Today, however, there are several businesses specialized in the creation of Web pages (see point 1.2.7.). In this case, the user gives the information to be spread to the firms, and they take charge of the formatting.
The diffusion of Web pages consists in making them accessible via the Internet. This is the main task of the manager of a server. He allocates disk space to users and establishes links towards the created page(s). Yet the user can always have access to a Web page without any link if he knows its exact reference. This reference, called URL, exactly corresponds to the address of the place where the Web page is located. A URL looks like this:
www.info.fundp.ac.be is the Internet address of the server which hosts the Web page, /~dza/ is the place where the Web page is on the server, and mapi-fr.html is the name of the page on the server.
b.4. Search for information on the Web
As explained above, a Web page contains links towards other pages, which allow the user to move to the information he wants to reach. Nevertheless, just like newsgroups, there are research tools to directly locate Web pages containing a specific piece of information. These tools (Yahoo, Altavista, Webcrawler, etc.), which look like electronic indexes, are very useful to find, out of all the Web pages, those containing a certain character string, such as "MAPI".
Some of these research tools only list the sites of which authors explicitly ask for an inventory to be made and classified in a particular rubric. Normally, the managers of these tools know the information listed by their tool, or are in a position to do so. This is the case of Yahoo, for instance. On the contrary, other sites record all the existing sites by making a random research and by following all the links listed in a particular page.
1.2.5. Bulletin Board System (BBS)
A BBS (Bulletin Board System) is a site which provides access to information for a fee. It should be noticed that, usually, this information is accessible via the News, the Web or even via the ordinary telephone network, with a modem.
The difference between this kind of site and habitual Internet sites lies in the fact that the information offered by BBSs is not free, even if they are accessible by the usual means available on the Net.
1.2.6. Internet Relay Chat (IRC)12
IRC (Internet Relay Chat) is a multi-user conversation system where users gather in channels (a virtual space with which a topic is associated) to chat in a group or privately. Contrary to the News, in the IRC, people are chatting in real time (all the users connected to a channel can interact simultaneously).
The client-server principle is applicable here too: a user works a "client" software which connects to an IRC network via a "server". Servers are responsible for transporting messages from one user to the other on the IRC network.
One of the users logged on to a channel is called the "channel operator" (by default, it is the first person who creates the channel). He can delegate his function to one or several other people connected in the same channel. He can also exclude someone from a channel at any moment.
An IRC operator is a person who maintains the IRC network, but he is not allowed to exclude someone from a particular channel.
1.2.7. Providers
So far we have mentioned the main services available on the Internet. However, it seems relevant to us to have a look at the terms used to call the main Internet providers. First it must be said that the vocabulary relating to providers is still not well fixed. We have used a terminology which is close to the one adopted by the European Commission13 .
An Internet Access Provider is a company providing its clients with access to the Internet and its basic services. The basic services usually include e-mail, the News system and the Web. To this end, the access provider generally proposes access to be made via a server or a gateway connected to the Internet.
An Internet Service Provider is a company which offers services additional to basic services: the hosting and diffusion of Web pages (we then speak more precisely of a Web Host Provider), the creation of "personal" Web pages, the management of Web sites and/or of News servers proper to the client, etc.
These roles can be played by one and the same company simultaneously. In most cases, the communication with a provider is established with a modem via the usual telephone network.
* Concerning research tools
The companies which currently offer research tools based on the preliminary recording of Web pages (Yahoo, for instance) must commit themselves to not listing information which undermines children's dignity and integrity.
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