What is the legal definition of ‘child pornography’?

The distribution of some forms of pornography (and thus not child pornography in particular) is penalised by Art. 383 of the Penal Code. This article, which penalises public indecency and immorality, concerns ‘songs, pamphlets or other writings, whether printed or not, and depictions or images which are contrary to decency’.

This does not determine the notion of pornography very clearly, although it is immediately clear that the law is equally applicable to texts, images and sounds, regardless of the medium carrying the material. Among other things, the law can apply to illustrations, videos, CDs and, of course, the Internet.

Not all pornography is prohibited in Belgium. The prohibition only concerns extreme pornography considered to be scandalous by society, such as bondage, bestiality and other paraphilias. The criterion that determines precisely what material is to be regarded as prohibited pornography is not defined by law, which means that judges must rule on a case by case basis. The criteria often used in this connection are that the material must offend ‘the sense of decency of the ordinary citizen’, as ‘felt by the collective consciousness at that time’. In other words, there is no unequivocal rule, which means that judges must base themselves on what the average citizen would consider to be illicit pornography.

Since 1995, the Penal Code has also contained an Article 383bis which relates only to images of sexual abuse of children, or ‘child pornography’. The distinction between this and other pornography lies in the fact that the material must show positions or sexual acts of a pornographic nature, involving or presenting minors. An older provision limiting the scope of this article to minors under 16 years of age was repealed in 2000.

It should be noted that the actual involvement of a minor is irrelevant. Even if the images only suggest the presence of a minor they may still constitute child pornography, as is also the case with drawings or computer-generated illustrations.

In addition to the age requirement, there is a second important difference with Article 383. Material can only be said to be child pornography in the legal sense of the term if it consists of ‘emblems, objects, films, photos, slides or other visual media’. In other words, only visual media are covered, and therefore it does not count for texts or simple sound recordings. However, these two groups fall within the description of pornography in general.

Can criminal proceedings be initiated against the originator of a message containing child pornography that is distributed via the Internet?

As far as child pornography is concerned, the Internet is subject to the same laws as everyday life. The main provisions in this respect are Articles 380ter and 383bis of the Penal Code.

Article 380ter first of all prohibits the distribution of messages advertising services of a sexual nature offered by minors or persons alleged to be minors. The advertising must therefore concern a service provided by minors. Advertising for a website containing child pornography does not seem to fall under this child . 

However, a second provision of Article 380ter makes any advertisement of services of a sexual nature an offence, when these services are provided via a means of telecommunication. Advertising for websites containing child pornography would thus fall within the scope of this provision. 

Article 383bis concerns, firstly, the distribution of child pornography and, secondly, the possession of such material. Both are criminal offences! 

The penalisation of ‘distribution' is in fact set out in even broader terms, punishing ‘anyone who exhibits, sells, rents out, distributes, sends or hands out child pornography, or manufactures or holds it in stock, imports it or has it imported, [or] hands it over to a transport or distribution agent with a view to sale or distribution’. In short, almost anyone who is involved in the exploitation or distribution of child pornography.

Applied to the Internet, the ban on the sale and distribution of child pornography is particularly important. Anyone publishing illustrations of a child-pornographic nature on a website or in a newsgroup or sending out emails on a large scale with content of this type undeniably falls under this category.

The law penalises the distribution of child pornography with imprisonment for five to ten years and a fine of 2,500 to 50,000 euros. The public prosecutor's office must first of all initiate proceedings, either on the basis of a report or by its own initiative.

Can someone be prosecuted for looking at child pornography on the Internet?

The Convention of the Council of Europe of 25 October 2007 on the Protection of Children against Sexual Exploitation and Sexual Abuse (also known as the Lanzarote Convention) attempts to respond to this need by taking a tougher approach to child pornography. Belgium has therefore also adapted its legislation in this area, with the law amending the legislation on improving the response to sexual abuse and acts of paedophilia within a relationship of authority. More specifically this law amends Article 383bis § 2 of the Criminal Code. Thus, the words "or knowingly procures access thereto via a computer system or any other technological means’ have been inserted between the words ‘possesses visual media’ and ‘shall be punished’.

The possession and deliberate procurement of access to child pornography are thus criminal offences. If you accidentally encounter child pornography material, you will not be punished. You must have viewed child pornography deliberately and ‘knowingly’. 

Are access providers responsible for the content to which they give access?

In theory, the Criminal Code does not contain any specific provision on the criminal liability of Internet providers, and they must therefore be judged according to the same standards as individual offenders.
There has been a great deal of discussion on the responsibility of access providers, both in Belgium and abroad (sometimes involving legal action), with varying results. 

In their most elementary form, access providers can be regarded as service providers that make it possible to make a connection with the Internet and exchange data via the Internet. By narrow interpretation, their role is therefore solely one of a passive medium that can only exercise a low level of control, or none at all, over the content sought by subscribers. In this hypothesis, it seems difficult to hold them criminally liable for this content.

We can find rather more concrete regulations which make it easier to understand this question in the laws of 11 March 2003 on information society services. These contain a chapter on the liability of service providers acting as intermediaries. The liability of a service provider acting solely as a medium is in theory excluded if certain conditions have been fulfilled. 
In theory an access provider is not liable if child pornography is transmitted onto its network, provided that its role remains limited to that of a simple medium.

However, many providers have more control over some of the services provided. This concerns a wide range of possible applications, including granting access to newsgroups, the hosting of websites or the creation of discussion forums. From this point of view, the responsibility of access providers may be more extensive. 

Are operators of web servers responsible for the content of the pages on their servers?

The difference with the services offered by access providers lies in the fact that the operator of a web server not only transmits data but also ensures its availability. This does not mean that it produces or controls content, but merely that the information is kept on computer systems under its control.

It would be very difficult in practice for the operator of a web server to check each page of each site on its servers for the presence of illegal content. In theory, therefore, the exoneration from liability allowed to access providers also benefits the operators of web servers. It should also be noted in this respect that the service providers in question are often the same. Many access providers offer web space to their subscribers so they can also  host these pages.

Here too, exoneration from liability is subject to certain conditions. In general, we can say that operators are exempt only when they were unaware of the presence of child pornography on their system and immediately took all possible measures to make the material inaccessible once they were informed of the problem.

Although this legislation dates back to 2003, these rules have been applied in practice in Belgium for longer. In 1999, very similar agreements were adopted in a cooperation agreement between the Belgian courts and the access providers that had come together in the Belgian ISPA (Internet Service Providers Association). Under these agreements, all illegal content can be reported directly by users, either to the Federal Police or to a contact point set up by the access provider itself. The latter can then pass on the necessary information and enable the Federal Police to start investigating the case. 

The same rule also applies to other information services on the Internet where the operator has direct control over the material: it is not criminally liable unless it has been informed of the presence of child pornography and has not taken the necessary measures to make the material inaccessible.

The most striking example in this respect is access to newsgroups. Almost all access providers offer their subscribers access to newsgroups, each dedicated to a relatively clearly defined theme. Given the phenomenal number of messages posted every day in these newsgroups, it is impossible to check each message individually. However, it is possible and even relatively simple to block access to an entire newsgroup for all subscribers. As some newsgroups can be easily identified as places for the exchange of child pornography material (e.g. because of a name such as alt.binaries.pictures.pedophilia), access to these newsgroups can easily be blocked for all subscribers. Any access provider who does not take up this responsibility could be accused of facilitating the distribution of child pornography, which could lead to proceedings on the basis of Article 383bis.

Specific services set up by access providers which they say to control (such as Internet forums), must subsequently be monitored to keep them free of child-pornographic material. Otherwise, providers could be held criminally liable. An access provider that has promised to moderate the content of certain services thus has a legal responsibility to filter the material properly.

What responsibility does a telecommunications operator have?

The role of a telecom operator is limited to maintaining and providing access to an infrastructure allowing data to be transmitted. However, operators have no oversight of the data and therefore cannot determine whether the content is of an illegal nature or not. Operators therefore play the role of simple media.

This seems to rule out criminal liability, as only deliberate distribution is punishable. Criminal liability therefore presupposes the willing and knowing distribution of child pornography, which is unlikely to be the case for a telecom operator.

Legal proceedings therefore cannot be instituted against an operator for distribution of child pornography as long as he is not and cannot be aware of the nature of the data.

What responsibility do payment services have?

For payment services such as VISA or American Express, more or less the same rule applies as for telecommunication operators: if they are not aware that their services are being abused for the distribution of child pornography, they cannot be prosecuted.

However, if they consciously facilitate the exchange of child pornography on the Internet, they could be involved in criminal proceedings as accomplices of the perpetrators.

Can an employer be prosecuted if one of its employees has child-pornographic material on his/her computer?

Not as such. Possession of child pornography can be punished only if the person ‘knowingly’ possesses the material. If this is not the case, the employer cannot be prosecuted.

On the other hand, if the employer is aware of the presence of child pornography on the computer of one of its employees and fails to take the necessary measures (e.g. by declaring it to the police), he or she can be prosecuted. From this point of view, whether the employer is a natural person or a legal entity is irrelevant.

FAQs prepared by the ICRI, Interdisciplinary Centre for Law and ICT, coordinated by Hans Graux

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