P2P File Sharing and Indecent Images: An Overview of the Law in the UK

P2P File Sharing and Indecent Images: An Overview of the Law in the UK

p2p-file-sharing-indecent-images-law-ukThe role that technology plays in everyday life cannot be understated: it is used in almost every aspect of modern living. Technology is primarily used to make things easier, and the same could also be said of Peer-to-Peer (P2P) file sharing systems. The difficulty, however, is that while these systems may have been created with wholly innocent intentions, their ability to transfer large amounts of information means that they are also vulnerable to abuse. Furthermore, the fact that they can be abused can also attract criminal liability on the part of individuals that make use of them.

There are certain individuals who may make use of P2P systems in order to share illegal material, particularly questionable images concerning children. The law in this area is very complex and can result in otherwise innocent people being implicated in cases of serious breaches of criminal legislation.

At Tuckers Solicitors, we are regularly involved in advising on cases where technology has been abused and otherwise innocent people are entangled in an investigation of alleged criminal activity on their part.

Possession of Indecent Images

P2P systems by their nature allow users to access each other’s files, meaning that material can be shared by multiple people. This is why it is relatively easy for the unintentional downloading of indecent material to attract criminal liability.

The law on the sharing of indecent images of children is set out in two different pieces of legislation: the Criminal Justice Act 1988 and the Protection of the Children Act 1978. In terms of downloading indecent images of children, the 1988 Act is the most relevant. It stipulates at section 160 that:

It is an offence for a person to have any indecent photograph or pseudo-photograph of a child in his possession.

The term ‘possession’ will normally be given its ordinary meaning: it means that if an individual actually has a physical copy of the image, then they will be in possession of it. However, in the case of file sharing, if there is evidence of indecent images on a computer, and proof that the individual concerned had control of the image in question, that will also attract the offence under section 160.

‘Pseudo-photographs’ have a particular meaning in law. Under the legislation a ‘pseudo photograph’ is a photograph – including moving images – or an image that has been made on a computer which look like real photographs.

The legislation itself does not define what ‘indecent’ means for the purposes of the charge. In order to determine whether or not an image is indecent there is a scale of classification that is used. This was first adopted in the well-known case of R-v-Oliver & Ors and employed a five point classification:

Level 1 – Images depicting erotic posing with no sexual activity;

Level 2 – Non-penetrative sexual activity between children, or solo masturbation by a child;

Level 3 – Non-penetrative sexual activity between adults and children;

Level 4 – Penetrative sexual activity involving a child or children, or both children and adults; and

Level 5 – Sadism or penetration of, or by, an animal

This system of classification is what is used by prosecuting authorities that are attempting to prove that an individual possessed indecent images of children. It is important to note that this categorisation has been remodelled since April 2014, and while covering all of the respective levels, is now categorised as follows:

Category A

Images involving penetrative sexual activity and/or images involving sexual activity with an animal or sadism

Category B

Images involving non-penetrative sexual activity

Category C

Other indecent images not falling within categories A or B.

Defences to Allegations of Possession of Indecent Photographs

There are however a number of defences that are available to individuals that are charged with possessing indecent images that are also set out in the 1988 Act. There are four defences to the crime of possession:

  1. Legitimate reason

The meaning of ‘legitimate reason’ is not clear – it is not defined in the legislation. If an individual attempts to defend against a charge of possession of indecent material based on some ‘legitimate reason’, then the burden of proof lies with them. Furthermore, the test that needs to be met in this case is civil, i.e. they must prove to a jury at trial that ‘it is more likely that not’ that they had a legitimate reason for having the images. In practice, the ‘legitimate reason’ would normally be connected with an individual’s occupation to be treated as potentially valid.

  1. Lack of knowledge

This defence is the most commonly advanced in cases that arise as a result of P2P file sharing. The essence of the defence is that the individual concerned did not see the photographs themselves and they did not know or have any reason to believe that the images were illegal. In this situation, the burden of proof will lie with the police and prosecuting authorities to prove at trial that the individual had seen the pictures.

It is not accurate to describe looking at pornographic material as illegal. The illegality stems from the subject matter, i.e. the presence of children etc. The defence of a ‘lack of knowledge’ can be particularly useful if an individual is using file sharing technology to search for legal pornography and downloads a file that they believe to be legal, which in fact includes images of children.

  1. The photograph was sent without any prior request from the individual and they did not keep it for an unreasonable time

This defence is less complicated to understand than the others, in that it relates to the situation where material simply ‘appears’ to be in an individual’s possession. It is not uncommon that in the context of P2P file sharing cases, this defence is used. Unfortunately, the legislation does not define what is meant by ‘prior request’, nor does it say what ‘unreasonable time’ means in practice. These will likely be matters for debate in court, when an individual attempts to use this defence.

Making of Indecent Images

It is very important to understand that the law not only penalises the possession of indecent images, but also includes ‘making’ it. Under the Protection of the Children Act 1978, there is a ‘making’ offence ,which is not as easy to understand. The Act states that:

It is an offence for a person to take, or permit to be taken or to make, any indecent photograph or pseudo-photograph of a child.

This crime is not concerned only with the origin of an indecent image, but also the fact that an individual causes an indecent image of a child to exist on a computer screen at all. If an individual is using technology, e.g. the internet or P2P file sharing devices, to search for and download pornography, and in the process unwillingly views child pornography then they will be vulnerable to a charge of ‘making’ indecent images of children. Any evidence that such material was distributed in any way will also attract liability under the 1978 Act.

Defences to Allegations of Making Indecent Images

There are defences available to individuals that are charged with ‘making’ and/or ‘distributing’ indecent images of children under the 1978 Act. These largely mirror the defences available under the 1988 Act. However, when individuals are charged with the crime of ‘making’ indecent images of children, and they had no intention of doing so, i.e. they used P2P file sharing technology to view adult pornography but child pornography was displayed, they may opt for a non statutory defence. An individual could claim that the material simply ‘popped up’, as is common with technology, unsolicited. The strength of this defence will normally depend on the quality of expert evidence.

Offences Concerning Prohibited Material

P2P file sharing not only presents issues in terms of potential criminal liability for indecent images of children, but also extends to other kinds of material: prohibited images of children and extreme pornographic images.

The Coroners and Justice Act 2009 created a new offence that is distinct from those related to indecent images of children. It states that:

It is an offence for a person to be in possession of a prohibited image of a child

The 2009 Act does give a definition of what a ‘prohibited image’ is in law. A ‘prohibited image’ is defined as an image that is:

  • Pornographic;
  • Grossly offensive, disgusting or otherwise of an obscene character; and
  • Focuses solely or principally on a child’s genitals or anal region, or portrays any of the following acts:
    • The performance by a person of an act of intercourse or oral sex with or in the presence of a child;
    • An act of masturbation by, of, involving or in the presence of a child;
    • An act which involves penetration of the vagina or anus of a child with a part of a person’s body or with anything else;
    • An act of penetration, in the presence of a child, of the vagina or anus of a person with a part of a person’s body or with anything else;
    • The performance by a child of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary); or
    • The performance by a person of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary).

The Criminal Justice and Immigration Act 2008 also introduced the offence of possession of extreme pornographic images. Under the Act, ‘extreme pornographic images’ are those that depict acts which: threaten a person’s life; results, or is likely to result, in serious injury to a person’s anus, breasts or genitals; or necrophilia.

The definitions are relatively comprehensive in scope, meaning that there is very little that will not be covered. A wide array of images may indeed fall foul of the legislation as a result, including manga, anime and even cartoon images.

However, it is not enough to demonstrate that an image is pornographic or grossly offensive for it to be prohibited. As mentioned earlier, all three elements of the legislative definition must be met.

If there is a criminal charge for possession of a prohibited image of a child made against an individual, there are defences available. These are exactly the same as those available for a charge for possession of indecent images of child under the Criminal Justice Act 1988.

P2P File Sharing Defence Solicitors UK: Contact Our Criminal Defence Team

P2P file sharing creates a myriad of potential problems under UK criminal law. The unfortunate reality is that while technology is created with the express intention of doing good, it can result in a number of complications when images of children are involved. The law in this area is incredibly sophisticated, reflecting the nature of the P2P technology and the potential for its abuse At Tuckers Solicitors, we have experience of the entire suite of criminal offences: defending allegations of historic sexual abuse; advising on complaints made against foster carers; and representing individuals charged with sexual offences. If you are concerned that you may be implicated with indecent or prohibited material, contact our specialist casework team. We can handle every aspect of your defence. Our offices are open 24 hours a day, seven days a week. For more information, please email suttons@tuckerssolicitors.com or call 0808 164 6795 or 0808 169 5980.

P2P File Sharing and Indecent Images: An Overview of the Law in the UK