APPENDIX 17
Memorandum submitted by the Internet Watch
Foundation (IWF)
The IWF welcomes this opportunity to provide
comments on the Sexual Offences Bill to the Home Affairs Committee.
The IWF was established by the UK Internet industry
community in 1996 to address the problem of illegal material on
the Internet, mainly child pornography. For the past seven years,
the IWF has worked in partnership with Internet service providers
(ISPs), telecommunication providers, mobile operators, software
providers, police and government, essentially to minimise the
availability of abusive images of children wherever they appear
in the world.
The primary function of the IWF is the operation
of an Internet hotline, to which anyone can report suspect material
they have been exposed to on a website, newsgroup or online group.
95% of the reports received by the IWF are perceived by the reporter
to be indecent images of children.
The IWF investigates each report, assessing
the content and where material is judged to be potentially illegal
and hosted by a UK ISP they will notify that ISP, asking them
to remove the offending material. This procedure is referred to
as "notice and take down". Notifications of all material
assessed as criminal, including that hosted outside the UK, are
always passed to the relevant law enforcement agencies. Further
information about the work of the IWF is available at www.iwf.org.uk
The comments below are restricted to two clauses
of the Bill which impact upon the operation of the IWF hotline.
CLAUSE 52—INDECENT
PHOTOGRAPHS OF
PERSONS AGED
16 OR 17
This clause amends the Protection of Children
Act 1978 by redefining the meaning of "child" as a person
under 18. This means offences such as taking, making, distributing,
possessing and showing an indecent image of a child will now be
applicable to photographs or pseudo-photographs of children of
16 or 17 years old. In addition to this amendment to the Protection
of Children Act, the Bill also creates exceptions to these offences
where the child aged 16 or over has given their consent.
Images of children aged 16 or 17
Although the IWF welcomes the principle of redefining
the meaning of a child in this way, consideration must be given
to the impact of this amendment on the operation of the IWF hotline.
The IWF experiences practical difficulties when
assessing images of adolescents and judging the ages of victims/participants
engaged in indecent acts. It is often extremely difficult to gauge
whether or not a person depicted in an image is in fact a child
because of the variations in maturity rates of adolescents. These
difficulties already exist under current legislation.
However, these practical difficulties were raised
with Home Office representatives who have since explained how
this amendment could lead to more prosecutions or more images
being removed from the Internet. Whilst they acknowledge the difficulties
in differentiating between children aged 16 and 18, they felt
it would be much easier to distinguish between a 13-year-old and
an 18-year-old.
Consent
The IWF had initial concerns over creating exceptions
to these offences where the child was aged 16 or 17, because it
envisaged severe practical difficulties for the hotline operation
if consent had to be determined prior to making an assessment
of an image.
However, the Home Office have confirmed that
the consent issue will not arise if images are published on the
Internet, since there is no defence provided for distribution.
Therefore any indecent photograph of a child under 18 that is
published on the Internet would be illegal, regardless of whether
consent had been given for the photograph to be taken.
Subsection (5)
Subsection (5) states that "this section
does not apply to photographs or pseudo-photographs taken or made
before the commencement of this section."
The IWF is concerned that this would cause practical
difficulties when assessing images, as it is not possible for
the IWF to determine when an image has been created and therefore
what legislation should apply. Therefore from an operational point
of view, the IWF would like to see this clause made applicable
to all such images, regardless of when they were taken or made.
CLAUSE 53—CRIMINAL
INVESTIGATIONS AND
PROCEEDINGS
This clause amends the Protection of Children
Act 1978 by creating a limited exception to the offence of "making"
an indecent photograph or pseudo-photograph, which includes the
downloading of images from the Internet or copies on a computer
hard drive. The exception is provided in situations where it is
necessary to "make" such photographs for the purposes
of criminal investigations or proceedings, or where authorisation
has been given.
Authorisations
The IWF welcomes the concept of authorisations
for those organisations that are required to "make"
indecent photographs or pseudo-photographs for the purposes of
the prevention, detection or investigation of crime. We believe
the IWF is an organisation that should receive such authorisation
and have received confirmation from the Home Office that this
should be the case.
However, the Home Office has taken the view
that the IWF would not be able to delegate such authorisation
to the ISPs whom it notifies, and that it would not, therefore,
have the authority to request any service provider to make a copy
of potentially illegal material for the purpose of preserving
evidence.
As it is intended that the IWF becomes an authorised
body, we feel it is reasonable to expect that it have the authority
to make such requests of ISPs who receive IWF notifications to
remove potentially illegal material from their servers. On occasions,
it may be necessary for an ISP to preserve evidence until a law
enforcement agency can consider the allocation of resources to
take up the criminal investigation to trace the potential offender.
Cases have emerged where potentially illegal content is available
for just a short period of time and it is not always possible
for a law enforcement officer to respond to the urgency of the
situation within such timeframes. In such circumstances, unless
the IWF were permitted to request that the ISP preserves potentially
illegal content, evidence may be lost forever.
Although the Home Office consider that the ISP
would be able to "disable access" to an image and preserve
the original (thereby avoiding the need to make a copy and the
need to have a defence for making) at the behest of the IWF, we
believe that this process would still involve "making"
a copy, and would therefore be illegal unless authorisation was
given to that ISP. If it is necessary for the IWF to request an
ISP to "disable access" to an image, this has obvious
legal implications and liabilities for the IWF and the ISP.
In addition, consideration needs to be given
to images downloaded from the Internet via mobile handsets and
transmitted across mobile networks. Although mobile access to
the Internet is still very much in its infancy, it is not yet
clear how the IWF notice and takedown procedures will be adapted
for mobile network operators, but the IWF would urge consideration
of how the authorisation issue will impact upon the assessment
of images appearing on handsets.
Scope of the defence
The Bill provides a defence for making a photograph
or pseudo-photograph of a child "if it is necessary to do
so for the purposes of criminal proceedings". It is unclear
why this defence has been provided as an alternative to the authorisation
defence, particularly as 1B(2) states that an authorisation may
only be given if it is necessary for the purposes of the prevention,
detection or investigation of crime. Does the exception under
1B(1) not fall under this definition? The IWF was initially concerned
that having two separate defences was too far reaching.
This point has been raised with the Home Office
who are considering whether this can be brought within the scope
of the authorisation process. However, the Home Office is confident
that, even as drafted, the scope is limited, since criminal proceedings
have to actually be in progress, not merely possible at some future
date.
February 2003
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