There is a creepy but provocative issue raised by an advertisement in Barcelona, Spain this month. The posters offered “abuse-free child pornography” that asked viewers to “Send us naked photos of when you were a child. For child pornography without abuse. +18 Yes to Pedophilia. No to Abuse.” The posters were later taken down, but they raise a challenging (if admittedly unsettling) legal question. If people are turning over pictures of themselves as children (without any prior abuse or sexual acts depicted), does it still constitute child pornography? Update: The articles on this story reported that the posters were displayed by JCDeaux, an advertising firm. However, I have communicated with a representative of the company who has stated that it had no role in the posters and “JCDecaux is investigating this unauthorized insertion of the poster in our bus shelter in Barcelona. We removed the poster as soon as we were made aware of it.”
The obvious problem is that such images would be used to fuel the fetishes or tastes of those who want to see child pornography. However, these are presumably innocent photographs being consensually posted by adults of themselves.
A standard code definition is found in California:
163.1 (1) In this section, “child pornography” means
(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or
(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years . . .
Since these childhood photographs do not depict a minor engaged in or depicted as engage in explicit sexual activity, the question becomes whether they can be treated as having “dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person.” The key is “a sexual purpose.” Nude pictures of children taken by parents are common and are not considered pornography regardless of the view of Walmart and other stores.
Assuming that these photographs would not be defined as children pornography, there is then the question of what happens when nude photos of children are circulated on the Internet. Presumably, it would not be treated as possession of child pornography. That could lead to a new complication for prosecutors as the voluntary source of such images is raised. It would also create a problem when such innocent photographs are digitally manipulated to appear as abuse, even though no such actual scene was photographed.
What do you think?