Is Everyone Who Received Monday's Metro Toronto Guilty Of Child Porn Possession?
from the certainly-seems-that-way dept
We were just talking about how current child porn laws that make you a criminal based on incidental possession alone can be quite problematic. Reader Jesse highlights an example of this. If you happen to have been in Toronto on Monday, and received a copy of Metro Toronto, a popular commuter paper, buried a few pages in was a "featured picture" of some kids celebrating at an annual parade by jumping around in a hot tub. The only problem? The male in the photo appears to be, well... having a wardrobe malfunction. Not unexpectedly, a bunch of sites were having some fun with this... until some realized that these were high school students. At that point, even Gawker -- who will post almost anything -- removed the photo realizing that under current laws, it was likely child pornography. Jesse points out that this would appear to make a bunch of people at the Metro, all the recipients of the paper on Monday, many people who visited blogs like Torontoist and Gawker while they had those photos displayed... potentially at risk for possessing child porn (and in the case of Metro employees and these blogs, for distributing it as well) -- making them all potential felons who could be required to sign up to be on sex offender lists for the rest of their lives. Isn't something wrong with the law when that happens?
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: accidents, photos, porn, possession, toronto
Reader Comments
Subscribe: RSS
View by: Time | Thread
one of the biggest problems with law, mind you, seems to be a lack of sanity in it's application.
that and a tendency for, depending on your country, lobbyists, politicians, and sundry others with less than wonderfully ideal motivation to intentionally create laws with gaps in them so that they can, or even Must, be applied in a way completely contrary to common sense.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
The law says...
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Nudity is not by itself illegal...
The paper and it's readers are fine.
[ link to this | view in chronology ]
Re: Nudity is not by itself illegal...
[ link to this | view in chronology ]
Re: Re: Nudity is not by itself illegal...
[ link to this | view in chronology ]
Everyone is getting pigeon holed?
I can only hope my pigeon malfunctions too
[ link to this | view in chronology ]
Re: Nudity is not by itself illegal...
[ link to this | view in chronology ]
Re: Re: Nudity is not by itself illegal...
> everyone involved in this.
Especially considering it happened in Canada, not the US.
[ link to this | view in chronology ]
Re: Nudity is not by itself illegal...
One grandma got in trouble for taking a picture of her grandchild in the bath tub, another guy lost custody of his children for over a month when he tried to develop a picture of himself blowing fart sounds on his naked less than 1 year old child which was making the child laugh.
Stories like this means it's obviously hard to show the difference between porn and nude.
[ link to this | view in chronology ]
Re: Re: Nudity is not by itself illegal...
I wholeheartedly disagree. Nudity is nudity, and being naked does not constitute porn. Porn would be when there is sexual activity going. The only area I see that is had to show the difference is if it is just nudity but the focus is on genitalia or partial nudity in some kind of clearly sexual outfit, like a tight crotchless leather suit.
This story is about incidental, partial (presumably accidental) nudity and poor editing that has been blown way out of proportion because of (what should be, bad sadly isn't) an irrational fear of persecution at the had of some overzealous attorney under the looming shadow of child porn laws.
[ link to this | view in chronology ]
Re: Re: Re: Nudity is not by itself illegal...
IMHO a wet transparent shirt on a girl constitutes a rather sexual outfit. By the way, did you see the picture in question? :)
[ link to this | view in chronology ]
Re: Nudity is not by itself illegal...
[ link to this | view in chronology ]
Re: Re: Nudity is not by itself illegal...
[ link to this | view in chronology ]
Re: Nudity is not by itself illegal...
The paper and it's readers are fine simply because you could not prosecute so many people. But if it were a single person who stumbled across a picture and got caught I'm pretty sure it could go down very differently.
[ link to this | view in chronology ]
Re: Nudity is not by itself illegal...
[ link to this | view in chronology ]
Yes
[ link to this | view in chronology ]
Tough Luck
[ link to this | view in chronology ]
America will just have to invade Canada. I mean these people are breaking the law. We can't have that so close to our pristine perfect society.
I hope the president decides quickly that these pedo Canadians need to be arrested. All of them.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Must Pigeon Hole Everyone
[ link to this | view in chronology ]
First off, the case is in Canada. The child porn laws in Canada are different from the US. Technically, yes, they are distributing an image that contains underage genitalia. The reality? It isn't a sexual image, and the distribution is unintentional, as is the reception.
Will they get a stern warning from one of the authorities? Probably. But without intent, the case is hard to make, hard to prosecute, and any sane judge would throw it out as an honest mistake. There is no intent to distribute child porn, so no issue.
This is unlike Mr Downloader the other day, who was attempting to download a pirated copy of something and well, managed to end up for child porn. I can't help but thinking that things like the torrent file name would help clear that story up and change the way you look at it.
Moral outrage factor: 3/10
[ link to this | view in chronology ]
Re:
Over and Over again, these sort of things get blown out of proportion, and your right the law as some flexibility in it, but when people (certain DA's we have spoken about here, in fact) say yea this girl txt'd a picture of her self naked to her boyfried they are HORRIBLE PEOPLE, and deserve to be branded for life... they take the flexibility out for personal and political gain, and where is the justice in that?
So show me where it says that this JUDGE, or DA MUST BE FLEXIBLE and ill show you 100 power hungery, lazy ones, that just follow the letter of the law until you grease their pockets... and lobby or support more laws just like it..
The real answer (albet IMO) is that laws should not be written or voted on by lawyers and judges... you would get easier to understand and better laws, and less of them to... cause the doctors, engineers, and the like dont have time to complicated and could give a flying f about the nuasensed speach the legal bullfrogs put in everything they do...
[ link to this | view in chronology ]
Re:
Please tell me how downloading the image makes any difference? Would downloading the picture on its own or in a torrented compliation of local news images make it child porn? Or would having it emailed to you from someone who thought it was amusing suddenly make it an offense in your eyes? Where's the line drawn?
"There is no intent to distribute child porn, so no issue."
Nor was there in the other case you're attacking,
"things like the torrent file name"
RTFA, dumbass. The pictures in question were downloaded from Limewire, which tends to have far lower "quality control" as to whether the film name reflects the contents. If you want to be taken seriously, try at least getting the facts in the stories you're trolling correct.
[ link to this | view in chronology ]
Re: Re:
Accidental exposure doesn't make for child porn. There was no intent.
The guy who did the downloading? Well, he was looking for naked girls, that much is clear, but was he searching for "naked cheerleaders" or "highschool cheerleaders"? We don't know, the story is not complete. I suspect the real story is something like an impulse download of a file that was questionable in nature to start with, and turned out to be CP. Too bad for him, but that's what you get when you deal with unreliable P2P / downloading networks.
When Mike runs stories like these, it sort of makes me laugh, because it's a real attempt to create more outrage where none really exists.
[ link to this | view in chronology ]
Re: Re: Re:
The people who read the newspaper? Well, they were looking for perfectly legal content, that much is clear. But were they hoping for photos of naked kids too? We just don't know, the story is not complete. I suspect the real story is exactly as presented, a completely innocent mistake. But that's what you get when you deal with unreliable Canadian newspapers.
[ link to this | view in chronology ]
Re: Re: Re:
"Accidental exposure doesn't make for child porn. There was no intent."
So, neither case is suitable for prosecution under child porn laws by your definition. Glad we agree on something.
"I suspect the real story is something like an impulse download of a file that was questionable in nature to start with"
Nope, the real story is of time, money and effort spent prosecuting someone who was no threat to children under pedophile laws, in the process ruining the life of someone whose only crime was looking for free porn (show me a 22 year old male who *doesn't* do this!). Resources are slim, and they should be spent going after those who produce such material, not someone who stumbles across it in their search for something else.
There's no attempt to create "outrage" here, it's just pointing out how ridiculous things could get if these laws were applied to their extremes. It is of course unlikely that Metro readers will be prosecuted for their accidental exposure to underage nudity - but then why should the other guy we've talked about?
[ link to this | view in chronology ]
Re:
The thing is, it IS the same thing. An accidental download (and piracy has nothing to do with that) is the same thing as an accidental posting, photo, and anything else. The ONLY thing that delineates this is that it's in Toronto, Canada, not the US of A. You can't treat one accident one way, and another accident differently.
I think Mike's point here is pretty simple: accidents happen, and people shouldn't be facing jail time and sexual predator tagging because of them.
[ link to this | view in chronology ]
From Metro Toronto
"UPDATE, DECEMBER 9, 2009: According to the Catholic school board which represents St. Peter's, the photo depicts a current seventeen-year-old student of the school. While the image as it appeared in Metro does not constitute "child pornography"—those depicted are not "engaged in explicit sexual activity" nor was the image's "dominant characteristic...the depiction, for a sexual purpose, of a sexual organ"—we've nonetheless pixellated the point of contention in the photo above."
[ link to this | view in chronology ]
Re: From Metro Toronto
[ link to this | view in chronology ]
Re: Re: From Metro Toronto
[ link to this | view in chronology ]
Re: From Metro Toronto
What happened to the original image... who's desktop is it on now?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
They must all be arrested
PROTECT THE CHILDREN
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
http://jonathanturley.org/2009/08/17/texas-officials-arrest-parents-and-take-away-th eir-children-for-taking-pictures-of-their-children-in-a-bathtub-and-breastfeeding/
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Reasons to hate the child porn laws...
Once a court determines the image is of an underage person in a sexual situation, you're guilty. It doesn't matter if the person really is not underage, if the court thinks they are underage, even proving otherwise would not matter. If doesn't matter if the image was obtained accidentally. Clicking on the wrong web link makes you guilty. It doesn't matter if you know it's there. Picking up a newspaper with a photo buried six pages in makes you guilty. It doesn't matter if you have any control over getting the photos. Someone sending you a file of photos in the mail makes you guilty of possession as soon as you pick up the mail.
The intent of the law was to stop child pornography by eliminating the market for it. Under the old law, the prosecution had to prove knowledge and intent to get a conviction. Intent is almost impossible to prove, so the conviction rate was almost zero. Under the new law, only possession has to be proved, making it much easier to get a conviction. It's made it much easier to convict the pedophiles, once they're found. It's also made it trivially easy to completely destroy someone's career and life. All you need to do is send a few kiddy porn photos to a mailing list that includes both your victim and a police officer. If you don't happen to know of such a mailing list, creating one is trivial using most e-mail clients.
Isn't the law a wonderful thing?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
They Should All Be Prosecuted
[ link to this | view in chronology ]
Oh I hope they go after everyone
I am not suggesting they should go to jail, but nothing like having 1.5million people charged with a crime for getting the news paper to make people think twice about the law.
[ link to this | view in chronology ]
it is cp under cdn law
Btw, yes, nudity alone doesn't make pornography, IF it features ADULTS. If the subjects are under 18, however, it is a very different game, legally speaking. All the more so in countries with strict cp laws such as Canada.
This is cp. They will get away just because they cannot prosecute everyone who is guilty of an offence in this case.
[ link to this | view in chronology ]
The Metro paper has about 100million readers
Around here we dont pay for it, like in most of the world.
It is provided free of charge on public transportation like metro's busses and trains. It lives by addrevenue.
It is the only deadtreeformat newspaper I read as I read it every day on the way to school.
[ link to this | view in chronology ]
the actual law
Canada
Under the Criminal Code provisions in Canada, material that shows someone who is or is "depicted as being" under 18, and is engaged or "depicted as engaged" in explicit sexual activity, is classified as "child pornography". Photographs of the genitals or anal region of someone under 18, "for a sexual purpose", are caught, as are written texts that advocate or counsel sex with a child.
The penalty for making or distributing child pornography is up to 10 years in prison. Possession or "accessing" carries a potential sentence of up to 5 years.
[ link to this | view in chronology ]
child porn
The same reason that the law isn't applied to American Pie which depicts under 18's having sex.
If you are a big film company or a newspaper you can break the child porn law.
The cops only go persecute a regular person; it's easier and cheaper to do.
[ link to this | view in chronology ]