Child pornography is any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child, the dominant characteristic of which is depiction for a sexual purpose. Child pornography can exist in different forms. Visual child pornography is the most common. Audio child pornography is the use of any audio devices using a child's voice, real or simulated, intended for the sexual gratification of the user.
Child pornography almost always commences with a crime against a child. In order to create child pornography someone has to abuse a child, often in the most violent and degrading ways. Users and traders in child pornography are, in a sense, parties or accessories after the fact to that abuse.
Pornography per se is not illegal in New Zealand. However, the Films, Videos and Publications Classification Act 1993 prohibits child pornography. Sections 123 and 131 of the Act make it an offence to make, possess or distribute an objectionable publication. The Act creates strict liability, as there is no defence that the defendant had no knowledge or no reasonable cause to believe that the publication was objectionable.
The definition of publication is comprehensive and includes all tangible forms of recorded material. A publication will be deemed objectionable if it promotes or supports the exploitation of children and young persons for sexual purposes. It may also be objectionable if it describes, depicts or otherwise deals with sexual conduct with or by children or young persons or exploits the nudity of children or young persons for sexual purposes. The Act does not define "young person" but decisions by the Film and Literature Board of Review and the Office of Film and Literature Classification seem to have interpreted it as meaning people under the age of 18 years of age. Certainly, there appears to be scope for the Board and Office to interpret young person in this way if international obligations require it.
Child pornography, particularly that which is related to the Internet, is a growing problem in New Zealand. The problem is largely associated with the possession and distribution of pornography that has been imported, as opposed to the production of child pornography within New Zealand.
The Censorship Compliance Unit of the Department of Internal Affairs is the primary enforcement agency for all aspects of the Films, Videos and Publications Classification Act 1993. As such, the Unit is the main agency responsible for the investigation of the distribution of child pornography via the Internet. In the five years since the Censorship Compliance Unit was established in July 1996, it has investigated 380 cases of New Zealanders distributing and trading objectionable material, most of which is child pornography.
Because of the nature of the Internet, widespread co-operation is needed between officials in many jurisdictions. The Department of Internal Affairs works closely with Interpol and overseas enforcement agencies in a world-wide effort to combat the distribution and making of objectionable material. Inspectors take a proactive role in prosecuting both New Zealanders who trade objectionable material via the Internet and individuals who are trading within other jurisdictions. New Zealand's international co-operation has led to the prosecution of offenders who otherwise may never have been detected. Within some European countries it is illegal for inspectors to undertake covert investigations on the Internet. By undertaking this work in New Zealand and providing the evidence through Interpol to the authorities, the Department of Internal Affairs inspectors are able to thwart the attempts of offenders to avoid prosecution by trading in different jurisdictions.
The Department of Internal Affairs has also developed software applications for Internet tracking which has been provided to overseas jurisdictions. The Department of Internal Affairs also works jointly with the New Zealand Customs Service and the Police to co-ordinate investigations into the manufacture and supply of pornography for the purpose of identifying paedophiles and persons with a sexual interest in children. Information about individuals who possess or distribute objectionable material collected through the Department of Internal Affairs is currently being used to profile offenders in a general sense, and also to establish whether there is a link between viewing child pornography and committing sexual offences against children. It has been suggested that child pornography is associated with active paedophilia within New Zealand. Paedophiles trade child pornography and covertly encourage each other in paedophilic offending. It is also used to induce children into believing that sexual activity with adults is normal.
As well as allowing pornographic material to be disseminated quickly and unobtrusively to anyone with access to a computer and modem, the Internet also provides an easy, non-threatening means to contact potential victims. The anonymity of the Internet can allow an adult to masquerade as a child and initiate friendships with trusting children. The adult is then in a position to encourage physical meetings or introduce pornographic material and abuse can follow.
Prevention is the key strategy for protecting children and young people who use the Internet. The Department of Internal Affairs produces a number of pamphlets about the Internet, censorship and child safety which are distributed to schools, universities and libraries. This information is also available on the Department's website along with a draft Code of Conduct that businesses, schools and universities can implement to clearly set out what is considered appropriate use of the Internet.
In 1998 an Internet Safety Group, comprising representatives from Police, the Department of Internal Affairs, Auckland Rape Crisis, the Internet Company of New Zealand, the Peace Foundation, the SAFE network, ECPAT NZ and a number of Auckland schools, was established to address the question of how to educate parents and young people about safety on the Internet. The Group has since developed an Internet Safety Kit designed teach safe Internet practices and how to be aware of potential abuse situations. At the same time the Kit was launched, the Group also established an Internet Safety website at www.netsafe.org.nz.
The speed at which technology can change and adapt has the potential to leave laws and legal processes redundant. It is necessary to regularly review existing legislation and methods of law enforcement to ensure they keep in step with the developments in technology.
Concerns have been raised about the applicability of the Films, Videos and Publications Classification Act 1993 to child pornography, especially its relevance to Internet technology. ECPAT NZ has concerns about the overall inadequacy of the Act to address advances in modern technology. The rapid technological advances enabling sexual images of children to be traded instantaneously, anonymously, and globally, with minimal cost, could not have been contemplated when the Act was passed in 1993.
The Government Administration Select Committee has commenced an inquiry into the operation of the Films, Videos and Publications Classification Act 1993. The Committee will specifically inquire into the capacity of the Act to deal with the impact of new technology on the classification process set out in the Act, including the transmission of live performances via the Internet. The Committee started hearing submissions in late July and has no formal report back date.
Further concern has also centred on the light penalties regime under the Act. The most severe penalty under the Act is one year's imprisonment for dealing in objectionable materials. The most severe penalty for possession of objectionable materials is a fine of $2000 in the case of an individual or $5000 in the case of a body corporate. The Ministry of Justice will be undertaking a review of the penalties regime of the Films, Videos and Publication Classification Act, as part of its work programme, in order to consider this concern.