Is Everyone Who Received Monday's Metro Toronto Guilty Of Child Porn Possession?

from the certainly-seems-that-way dept

Thu, Dec 10th 2009 1:25am — Mike Masnick

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?

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Filed Under: accidents, photos, porn, possession, toronto

49 Comments

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Chargone (profile), 10 Dec 2009 @ 3:02am

I'm going with 'Yes'.

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.
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., 10 Dec 2009 @ 3:12am

The law says...
Yeah! they are all dirty pedos and have to go to jail.
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Anonymous Coward, 10 Dec 2009 @ 3:31am

Likely Masnick is in violation and will be doomed for a lifetime of registered sex offender status for his graphic description of the scene. ...and across state lines too.
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DS, 10 Dec 2009 @ 3:36am

Based on the current hysteria, now everyone who saw this picture is going to start raping little boys. Good job Canada.
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==), 10 Dec 2009 @ 3:46am

Nudity is not by itself illegal...
A child nude is not illegal. Being involved in a sexual act is illegal.

The paper and it's readers are fine.
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Anonymous Coward, 10 Dec 2009 @ 3:59am

Yes
They should all go to jail, thats what they get for getting child porn in the mail. its not the papers fault for getting the paper, its the receivers who are at fault.
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Anonymous Coward, 10 Dec 2009 @ 4:28am

Tough Luck
Everyone should go to jail, even the people who received the paper but did not read or see the picture. Anyone who is signed up to receive a copy of the newspaper needs to be thrown in jail immediately.
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senshikaze (profile), 10 Dec 2009 @ 4:39am

Well, there is nothing we can do about it.
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.
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senshikaze (profile), 10 Dec 2009 @ 4:39am

Re:
/sarcasm
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IANAL, 10 Dec 2009 @ 5:00am

Re: Nudity is not by itself illegal...
Are you a lawyer?
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DHS, 10 Dec 2009 @ 5:03am

Must Pigeon Hole Everyone
It's plot to get everyone on a list of some sort, there are many to chose from - anyone have a problem with that ?
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ethorad (profile), 10 Dec 2009 @ 5:04am

Re: Re: Nudity is not by itself illegal...
It's not just lawyers who would know what constitutes child porn you know. I would imagine paedophiles could offer an expert opinion :)
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Chronno S. Trigger (profile), 10 Dec 2009 @ 5:21am

Re: Nudity is not by itself illegal...
Under the letter of the law you are correct. A picture like that would not be a problem except that's not how the law is interpreted any more. Now the law is interpreted to say that anything like that is bad. But I don't even think the US would be dumb enough to go after everyone involved in this. It would be too big and too much bad press.
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Anonymous Coward, 10 Dec 2009 @ 5:26am

Mike, welcome to the world of "why there is flexibility within the law".

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
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Benjie, 10 Dec 2009 @ 5:27am

Re: Nudity is not by itself illegal...
Then how are people getting their children taken away when they take pictures of their newborns 'cause they get arrested when they try to develop the pictures at Walmart/Walgreens/etc.

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.
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BobinBaltimore (profile), 10 Dec 2009 @ 5:29am

From Metro Toronto
Looks like the paper's lawyers have reviewed this and, as expected, concluded that it's not child porn, but that it is inadvisable to propagate it further. From their site, following the link Mike provided:

"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."
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CastorTroy-Libertarian, 10 Dec 2009 @ 5:47am

Re:
Hmmm, but under your same weak argument, if i happened to download the Paper (like i would do most days if i follow that newspaper), i am a dirty pedo, even though i though i was just getting a properly affiliated and "professional" bit of news...

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...
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Mechwarrior, 10 Dec 2009 @ 5:54am

Re: Nudity is not by itself illegal...
That's if the pictures are of your children. If they aren't,well than you're on a one way trip to a lifetime of state-enforced disenfranchisement.
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a-dub (profile), 10 Dec 2009 @ 6:06am

Anyone here familiar with Sally Mann's photography? Just something to ponder.
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aguywhoneedstenbucks (profile), 10 Dec 2009 @ 6:12am

Re: From Metro Toronto
I don't know that I'd like to be the guy whose junk is referred to as "the point of contention".
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Anonymous Coward, 10 Dec 2009 @ 6:16am

Everyone is getting pigeon holed?
So there's one male with a wardrobe malfunction and now you want to pigeon hole everyone...

I can only hope my pigeon malfunctions too
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Anonymous Coward, 10 Dec 2009 @ 6:20am

Re: From Metro Toronto
Oh yeah... and we can really trust the Catholic school board and church to define child pornography.

What happened to the original image... who's desktop is it on now?
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PaulT (profile), 10 Dec 2009 @ 6:27am

Re:
...and so the cluelessness continues from our favourite cowardly troll...

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.
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known coward, 10 Dec 2009 @ 6:49am

They must all be arrested
to

PROTECT THE CHILDREN
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maroon78 (profile), 10 Dec 2009 @ 6:53am

Re: Re: From Metro Toronto
and then to get pixalated!
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PrometheeFeu (profile), 10 Dec 2009 @ 7:23am

I'm fairly certain that pornography (including pedopornography) is defined in such a way that nudity is not sufficient. I mean, it is fairly common to take pictures of your own naked children during the phase when they don't wear cloths very often. I have personal knowledge of a case where someone invited a friend over in Canada. The friend noticed that her host had naked pictures of her child and so went and filed a police report under child porn laws. The prosecutor just laughed the case off as ridiculous. I'm fairly certain the two women are no longer friends...
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Skout (profile), 10 Dec 2009 @ 8:51am

Re:
"This is unlike Mr Downloader the other day,"

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.
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Anonymous Coward, 10 Dec 2009 @ 8:55am

Re: Re: Nudity is not by itself illegal...
Child nudity may be illegal under federal law if it involves the "lascivious exhibition of the genitals or pubic area. . . ." - 18 U.S.C. § 2256(2)(A)(v). Key word being "lascivious" - I'd hate to defend a criminal prosecution that hinged on that distinction.
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Anonymous Coward, 10 Dec 2009 @ 9:11am

Re:
I see your intelligent Canadian prosecutor and raise you stupid Texan prosecutors.

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/
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TheStupidOne, 10 Dec 2009 @ 9:15am

Re: Re: Nudity is not by itself illegal...
"it's obviously hard to show the difference between porn and nude."

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.
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Coyote, 10 Dec 2009 @ 9:18am

Way to troll, Masnick.
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Jesse, 10 Dec 2009 @ 9:28am

Re: Nudity is not by itself illegal...
Except that is often not how it is interpreted. Furthermore, how can any independent body verify the sexuality of the picture if viewing said picture could make them a sex offender? Lastly, in Canada, it does not have to be a sexual act.

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.
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satan, 10 Dec 2009 @ 9:32am

Re:
that's why we have juries
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Anonymous Coward, 10 Dec 2009 @ 9:39am

Re: Re:
I RTFA, dumbass, and I understand both stories.

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.
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Chris-Mouse (profile), 10 Dec 2009 @ 9:43am

Reasons to hate the child porn laws...
This is the reason I really dislike the child pornography laws in Canada. There is NO acceptable excuse permitted.
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?
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nasch (profile), 10 Dec 2009 @ 9:57am

Re: Re: Re:
The guy who did the downloading? Well, he was looking for [perfectly legal content], that much is clear [since he deleted the illegal content as soon as he saw it], 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 [according to you], and turned out to be CP. Too bad for him, but that's what you get when you deal with unreliable P2P / downloading networks.

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.
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The Groove Tiger (profile), 10 Dec 2009 @ 11:46am

Re:
That's a good point. Since this is on the internets, it should count as smuggling it across country borders!
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Ame, 10 Dec 2009 @ 12:30pm

Re:
Or Jan Saudek for that matter?
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vyvyan, 10 Dec 2009 @ 12:39pm

Now let's just put the name of all Canadian citizens on child offenders list. Is there someway to file a litigation. At least this will abolish the lame law for ever.
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Tamara, 10 Dec 2009 @ 1:54pm

Re: Nudity is not by itself illegal...
That's supposed to be the case in Australia as well. However last year an internationally renowned photographer was arrested and all his work siezed because he had a topless photo of a 12-year old girl in one of them. The same photo had been shown around a lot of Europe. The charges were eventually dropped but it's a joke he was arrested in the first place. The thing is that by arresting him it gave the photo much more publcity with some media outlets showing the photo uncensored when no one but art lovers would have seen it otherwise. I have no interest in art whatsoever, so couldn't care less about the photo but could clearly see that it was not a sexualised photo. The people who thought it was are the ones who should be arrested as they are clearly disturbed.
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TSO, 10 Dec 2009 @ 4:45pm

Re: Re: Re: Nudity is not by itself illegal...
> partial nudity in some kind of clearly sexual outfit, like a tight crotchless leather suit.

IMHO a wet transparent shirt on a girl constitutes a rather sexual outfit. By the way, did you see the picture in question? :)
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Anonymous Coward, 10 Dec 2009 @ 5:46pm

They Should All Be Prosecuted
It's about time something was done about all the immorality in the Metro Toronto. Now they think they can get away with publishing child pornography simply by being brazen enough to do it out in the open? And then if they get in trouble they'll just say "Oh gee, we didn't know what we were doing"? Puleeze! I'm sure that every paedophile in the area rushed out to buy their very own copy as soon as they heard what Metro Toronto was up to. Well, they need to be shown that it won't work. Prosecute all those involved (publishers, distributors, sellers and buyers) to set an example for any others thinking about doing something similar.
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PaulT (profile), 11 Dec 2009 @ 1:07am

Re: Re: Re:
OK, you read the story but don't know the difference between a P2P network (Limewire, which was used in that case) and BitTorrent (which you thought was used). So, either you didn't read the article properly, or you don't know the difference between two completely different P2P methods. Judging by your lack of comprehension about most other things in this area, I can't say I'm surprised.

"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?
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btr1701 (profile), 11 Dec 2009 @ 8:47am

Re: Re: Nudity is not by itself illegal...
> But I don't even think the US would be dumb enough to go after
> everyone involved in this.

Especially considering it happened in Canada, not the US.
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Nraddin, 11 Dec 2009 @ 8:55am

Oh I hope they go after everyone
I think it would be great if someone in the DAs office went after everyone that had the paper. Have arrested every single person at the paper and all the people that handle getting to the stands, those that run the stands, and all the site operators that used the photo.

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.
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momomo, 12 Dec 2009 @ 5:32pm

it is cp under cdn law
In Canada the prosecutor doesn't have to prove that the picture passes a somewhat regulated lasciviousness test, as it is in the USA. If it has a minor in it, it is cp.

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.
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iHME, 15 Dec 2009 @ 5:27am

The Metro paper has about 100million readers
...and many localizations.
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.
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Mike, 31 Dec 2009 @ 9:06am

the actual law
http://wiki.lawguru.com/index.php/Child_pornography

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.
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Mike, 31 Dec 2009 @ 9:11am

child porn
They won't do anything to the newspaper because they have lot's of money and good lawyers which could overturn the law.

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.
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