Area of Law: Internet and Cyber Law
Answer # 355
Obscenity and protecting children on the InternetRegion: Ontario Answer # 355
There is very little regulation or control of what is allowed on the Internet. Although there are many sites that contain nudity and sexually explicit material, most of these are not illegal. However, websites which depict sexual exploitation, violence, or nude images of children under 18 years old are almost always considered illegal in Canada. There are three main laws that attempt to protect children on the Internet: the Criminal Code, An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service, and provincial Child Pornography Reporting Acts.
The Criminal Code and child pornography
In Canada, the production or distribution of obscene materials is prohibited. It is also an offence to knowingly sell or expose to public view, or to possess for such purposes, obscene materials. A related provision in the Criminal Code makes it an offence to make, publish, distribute or possess child pornography, subject to certain limited exceptions. This means that a person who visits a website which contains child pornography and views it on his or her computer may be guilty of a criminal offence because a copy of the images may be left on the computer’s hard drive.
The Criminal Code definition of child pornography includes:
- Any visual representation of explicit sexual activity with a person who is, or who is depicted as being under the age of 18;
- Any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of 18;
- Any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under the Act.
View Section 163(1) of the Criminal Code for the full definition of child pornography.
Mandatory reporting of online child pornography by ISPs
On December 8, 2011, An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service came into force.
The purpose of the legislation is to assist law enforcement agencies to locate the sources of child pornography on the Internet and shut them down. The Act requires Internet Service Providers (ISPs) to:
- Report tips they receive regarding any website that may possibly contain child pornography to the Canadian Centre for Child Protection (through Cybertip.ca); and
- Notify police if they believe that a child pornography offence has been committed using their Internet service.
The new federal Act works with provincial (and foreign) jurisdictions that currently have, or are introducing similar reporting legislation. Manitoba was the first province in Canada to introduce legislation, in its Child and Family Services Act, to include the definition of child pornography. Since then, Ontario has amended its Child, Youth and Family and Services Act, through the introduction of the Child Pornography Reporting Act. Nova Scotia‘s Child Pornography Reporting Act, and Alberta’s Mandatory Reporting of Child Pornography Act also include definitions of child pornography as defined in the Criminal Code. Essentially, by using the same definition found in the Code, all provincial and federal child pornography reporting legislation can be interpreted and applied similarly nationwide. This will make it easier for law enforcement agencies across the country to work together.
In addition, these Acts make it mandatory for any individual to report instances of something they believe to be child pornography to a designated regulated organization, agency or person (such as Cybertip.ca).
What is Cybertip?
Cybertip.ca is an online tipline run by The Canadian Centre for Child Protection, a charitable organization that provides programs and resources dedicated to personal safety of children and reducing child victimization. When the federal Act became law, Cybertip.ca became the designated service for reporting the sexual exploitation of children.
The types of exploitation that are reported can include:
- Child pornography (child abuse images and material),
- Online luring,
- Child sex tourism (travelling to sexually exploit children),
- Child prostitution,
- Child trafficking,
- Making sexual explicit material available to a child, and
- An agreement or arrangement with another person to commit a sexual offence against a child.
Under the new federal Act, penalties for not reporting include:
For individuals (ISPs that are sole proprietors), a fine:
– for a first offence, up-to $1,000,
– for a second offence, up-to $5,000, and
– for each subsequent offence, up-to $10,000, or to imprisonment for a term up-to six months, or to both.
For all other cases (including partnerships, and corporations), a fine:
– for a first offence, up-to $10,000,
– for a second offence, up-to $50,000, and
– for each subsequent offence, up-to $100,000.
Ontario’s legislation, states that:
A person convicted of an offence (of not reporting) is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than two years, or to both.
Voluntary reporting of child pornography by the public
In addition to mandatory reporting requirements, any member of the public is also able to voluntarily report instances of child exploitation. Depending on the situation, the individual can make a report to Cybertip.ca or to their local law enforcement agency. When reporting to Cybertip.ca, the person can choose to remain anonymous, or agree to be contacted for further information.
Cybertip.ca sends all reports that they believe may be in contravention of the Criminal Code to law enforcement for possible investigation. Furthermore, appropriate child welfare agencies are informed of any information regarding a child potentially in need of protection.
You may also wish to contact the ISP that is hosting the site where the offensive material is found to report your concerns.
How to control what your children see on the Internet
Despite the fact that pornography can easily be found on the Internet, there are measures that parents can take to try and prevent children from accessing inappropriate material on the Internet. For example:
- Keep computers and other devices connected to the Internet in open view in your home
- Use one of several software programs to block unwanted images or text. Two of the most popular of these programs are Net Nanny and CyberPatrol, which can be downloaded from the Internet for a fee. Other programs are available for free
- Talk openly with parents of children with whom your child plays
- Monitor your child’s activities and communications on their devices
- Speak with your children and keep communication open
For more information about obscenity laws and protecting children on the Internet, or to report a case of suspected child exploitation, visit Cybertip.ca or contact your local law enforcement agency.
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