Thu Dec 08 16:19:57 SAST 2016

Is virtual child porn illegal?

Sasha Beharilal | 2016-04-15 10:13:54.0
A screenshot from Grand Theft Auto V
Image by: Rockstargames.com

Technology has made it possible to create an alternative world – a virtual reality – where we can build cities, fight dragons or steal cars.

Virtual reality allows us to indulge in our fantasies, whether it is owning and racing supercars or assassinating our enemies. It’s not real, and it does not have real world consequences. So if stealing a car in a game is not a real world crime, surely viewing virtual child pornography isn’t a crime, or is it?

The Constitution is explicitly clear when dealing with children’s rights, Section 28 provides that children must be protected from maltreatment, neglect, abuse or degradation.

Child pornography is abusive, exploitative and degrading to the children involved, making it unconstitutional and illegal. Our Constitution considers children’s’ rights before any other right –for example, the right to freedom of expression or privacy.

You cannot argue that you are viewing this material in the privacy of your home and thus it is harmless because the very existence of child porn implies that the children involved were subjected to abuse. 

Is virtual child porn the answer?

Virtual child pornography means that no actual children will be used for the production of such material therefore there is no real harm or danger to children.

In the United States of America, the Congress banned virtual child pornography by means of the Child Pornography Prevention Act.

This Act explicitly prohibited “computer or computer-generated image or picture" that is or appears to be, a minor engaging in sexual conduct, or conveys the impression that a minor is engaging in sexual conduct.

However this ban was struck down in the 2002 case of Ashcroft v The Free Speech Coalition. The Court alleged that the “appears to be” and “conveys the impression” provisions were considered over-broad and vague. The Court confirmed the illegality of child pornography, in which an actual child appears, but said “virtual” pornography is legal.

The South African position

The Films and Publications Act 65 of 1996 (“the Act”) defines child pornography as “any image, however created, or any description of a person, real or simulated, who is or who is depicted, made to appear, look like, represented or described as being under the age of 18 years-

  1. engaged in sexual conduct;
  2. participating in, or assisting another person to participate in, sexual conduct; or
  3. showing or describing the body, or parts of the body, of such a person in a manner or in circumstances which, within context, amounts to sexual exploitation, or in such a manner that it is capable of being used for the purposes of sexual exploitation”

Section 24 of the Act further reiterates this by creating an offense for any person who knowingly makes available any game or publication which contains depictions of child pornography or which advocates, advertises, encourages or promotes child pornography or the sexual exploitation of children.

Consequently, virtual child pornography is included in the definition of child pornography and it is illegal, with real world consequences. Possession, production and the distribution of child pornography are separate offenses. Any person found guilty of distribution and possession can be fined up to R750 000 and R400 000 respectively or face imprisonment for up to five years, or both.

Internet service providers will face criminal prosecution if they fail to block access to child pornography sites after they are aware of its existence and failure to report the presence of child porn will result in individuals being criminally liable.

  • Sasha Beharilal is a Candidate Attorney at Phukubje Pierce Masithela Attorneys.

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