Citation(2003) 15 SAcLJ 126
Published date01 December 2003
Date01 December 2003

“Making laws is not the same as enforcing them. While sufficient anti-child pornography laws exist in many nations, enforcement is weak. Furthermore, policing a global operation like the Internet involves policing citizens from countries with widely differing domestic laws, cultures and social mores. Although these obstacles appear insurmountable, it must be remembered that child pornography is a substantive and compelling problem on international, national, and local levels, and it is not a harmless crime.”1


1 This article seeks to summarise some of the salient points covered in a report prepared by this author arising from a consultation on the Impact of the Internet and New Media on Children. The consultation was undertaken by the Asian Media Information and Communication Centre (“AMIC”), jointly with UNICEF, UNESCO, Government Public Relations Department, Office of the Prime Minister, Thailand and the Netherlands Government.

2 The discussion contained in this article will be brief and readers who are interested in a fuller exposition of the points covered in the article are encouraged to refer to the author’s chapter “On-line Content Regulation and Privacy Protection: An Overview with a Focus on the Position in Singapore” in Kavitha Shetty (ed), Kids On-Line: Promoting Responsible Use and a Safe Environment on the Net in Asia (2002, SCI-AMIC/NTU).

The Abuse of Children’s Rights on the Internet

3 There are a multitude of ‘sins’ that can and have been inflicted upon children on the Internet, of which child pornography is probably the most visible. Children also potentially open themselves up to privacy transgressions when they participate in online communications. In addition, the Internet can be and has been used to entice children to join groups of dubious origins or with questionable aims, such as hate groups, and to perpetuate fraud on them. Quite apart from the solicitation of children into child pornography, the availability of pornographic material that can be accessed by children can also be viewed as a transgression on the rights of children. In this article, we will focus primarily on the issue of child pornography and the protection of children’s privacy online.

Child Pornography on the Internet
An Overview

4 The difficulties in addressing issues pertaining to child pornography on the Internet is well illustrated by an incident that took place some time back. In early August 2001, it was announced that the FBI had arrested 100 subscribers to child pornography websites, which is understood to have around 250,000 subscribers worldwide and grossed up to $1.4 million a month.2 Authorities called it the largest child- pornography business ever discovered in the United States.3 The bulk of the material came from Indonesia and Russia, where officials believe the Webmasters operated the sites. The police in Indonesia and Russia have, however, indicated that prosecuting suspects linked to the Texas-based online child pornography ring in their countries will be difficult, due to slack laws governing the Internet and pornography.

5 In a report on the incident, it was noted that Indonesia has no laws banning online pornography and that activists in Indonesia are concerned that cybercrime flourishes with the help of lazy policing. According to Ade Armando, of Indonesia’s Anti-Pornography Society, “Indonesia is a

haven for child pornography. Sadly, it is completely unregulated here. You can do anything.” Turning to the position in Russia, Dmitry Chepchugov, head of the Russian Interior Ministry’s department for high technology crimes, stated that Russian law does not distinguish between child pornography and pornography involving adults and treats the production and distribution of either as a minor crime. These comments are hardly surprising, as it has generally been observed that Web-based criminals often base illegal enterprises in developing countries because of poor law enforcement4 and the lack of regulations covering the Internet.5

Enforceability of Laws in the Internet Environment — A Conceptual Examination

6 In developing relevant laws to deal with Internet related activities, there has sometimes been a tendency to confuse the issue of applicability with enforceability. A legislator from any country can easily craft laws that apply to particular activities undertaken via the Internet. The true

difficulty is in ensuring that the laws are enforceable in practice.6 In this section, we will examine the factors legislators have to be mindful of when developing legislation such as that which deals with the issue of pornography or privacy over the Internet.7

7 Laws that are practically unenforceable suffer from two major defects.8 Firstly, they fail to deal with the mischief sought to be remedied by the law that has been enacted. Secondly, the knowledge that they are unenforceable tends to weaken the normative9 force of other laws and this sometimes has the effect of weakening the entire legal system.10

8 The borderless nature of the Internet creates special problems pertaining to enforceability of laws. As one commentator puts it, the “problems of unenforceability arise largely from the trans-jurisdictional nature of Internet activities”11 and “[t]he system of law and regulation which needs to be enforceable is not simply that of a single jurisdiction, but that of all the...

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