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12 Info. & Comm. Tech. L. 3 (2003)

handle is hein.journals/infctel12 and id is 1 raw text is: Information & Communication Technology Law                      Carfax Publishing
Taylor & Francis rou;
Vol. 12, No. 1, 2003
Controlling Internet Child Pornography and Protecting
the Child
ABSTRACT After setting out the proposals for the control of child pornography con-
tained in the Council of Europe's Convention on Cybercrime, the article examines the
extent to which the existing law in England and Wales is compatible with these
proposals. There is then a discussion of the criteria underlying the sentencing policy
suggested by the Sentencing Advisory Panel drawing attention to the problems which
arise from the fact that the law is related more to the images transmitted than to the
actual suffering of the child. The requirements and problems of effective enforcement are
examined in some detail, highlighting both the vast steps which have been taken in recent
years and the gaps which still remain in the policing of this activity. Finally, the
conclusion discusses whether either the way in which the laws are written or their
application constitutes the most effective way of protecting real children from abuse.
The Council of Europe Convention on Cybercrime
In November 2001, the Council of Europe opened for signature its Convention
on Cybercrime,' which has now been signed by 30 Member States and 4
non-Member States.' Before it comes into force, it must be ratified by five states,
three of which must be Member States. Thus far, only two Member States have
ratified the Convention.3 In essence, the Convention seeks to set out a common
criminal policy harmonising substantive criminal laws in the area of computing
(cybercrimes), thereby setting up the procedural powers necessary to ensure
these are upheld. It also seeks to set out ways in which states should combine
or cooperate in order to counter these activities.
The Convention was entered into in order to address enforcement problems
that arise due to the global nature of computers, which are not bound by state
borders. For example, the actions of someone in the United States may have
harmful effects in, for instance, Europe and Australia while not affecting anyone
in the United States. The Council of Europe chose to agree certain basic offences
for which each state would enact legislation, rendering cooperation on enforce-
ment more likely to be acceptable both at an international level and within
states. The Convention contains laws controlling the following: violations of
network security (illegal access, illegal interception, data interference, system
interference, misuse of devices), copyright and protection of related interests,
computer-related fraud, computer-related forgery and child pornography.
Although an article to control hate speech was suggested, this was dropped
and is now the basis of a provisional protocol to the Cybercrime Convention.
This means that child pornography is the only content-related offence included.
ISSN 1360-0834 print/ISSN 1469-8404 online/03/010003-22 @ 2003 Taylor & Francis Ltd
DOI: 10.1080/1360083032000052232

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