Joseph Savirimuthu Online Child Safety Law, Technology and Governance
Joseph Savirimuthu Online Child Safety Law, Technology and Governance
Joseph Savirimuthu Online Child Safety Law, Technology and Governance
Joseph Savirimuthu
Liverpool Law School, Liverpool University, UK
Notes 305
Select Bibliography 308
Index 339
vii
viii
Australia
Canada
A-Gs Reference (No. 5 of 1980) [1980] 3 All ER 816, 72 Cr App Rep 71.
A-Gs Reference (No. 3 of 1999) [2001] 1 All ER 577.
A-Gs Reference (No. 29 of 2008) R v D [2008] EWCA Crim 2026.
A-Gs Reference (No. 28 of 2010) [2010] EWCA Crim 1996.
Akyol v DPP Zwole Lelystad Netherlands [2010] EWHC 605 (Admin).
Atkins v DPP, Goodland v DPP [2000] 2 All ER 425.
Ayaz v Italy [2010] EWHC 2650.
Bohning v Government of the United States of America [2006] 3 All ER
394.
Bradford-Smart v West Sussex County Council [2002] EWCA Civ 07.
Bunt v Tilley [2006] EWHC 407 (QB).
Coleiro v Malta [2011] EWHC 873.
Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet
[2000] 1 AC 147, [1999] 2 All ER 97, [1999] UKHL 17, [1999] 2 WLR 827.
Connelly v DPP [1964] AC 1254.
Connolly v DPP [2007] EWHC 237(Admin).
Collins v Wilcock [1984] 3 All ER 374.
Cowan v Condon [2000] 1 WLR 254.
DPP v Collins [2006] UKHL 40.
xvii
xix
and hugely expand the market for child pornography. The possibility
that by building Transmission Control Protocol/Internet Protocol (TCP/IP)
they would be paving the way for even one man to locate, kidnap, rape and
murder a single child would have propelled some to abandon computer sci-
ence altogether and take up flower arranging. Yet all this has happened and
much besides. The facts are assembled and documented with great care and
precision by Savirimuthu, not as a ghoulish catalogue or an indictment but
as a scholarly call for us all to do better.
The Internet grew up in and burst out of the small and trusting world
of the Academy. It had tootled along for years as an aid to research and
communication within communities which, originally, typically were small
enough and intimate enough, if not exactly for everyone to know everyone,
at least to have a shared ethos that allowed a sense of a self-governing col-
lective responsibility to emerge. Even as private companies started to dis-
cover the value of e-mail and FTP servers in the 1980s we were still a long
way from the sort of Internet we have today.
The development of the web in the early 1990s changed everything. It
heralded the arrival of a new, heterogeneous, gigantic clientele, including
in its midst enormous numbers of children and young people. But the same
notions of independence from officialdom and authority persisted, particu-
larly among old hands. We didnt need Government to get us here and we
definitely dont need them now. In fact, a large part of the funds which
paid for the early research which paved the way for the Internet was pro-
vided courtesy of different though mainly American taxpayers, but let that
pass.
Could the Internet have been constructed in a different way which would
have avoided or reduced its potential to do the kind of evil I have outlined
and which Savirimuthu analyses? Absolutely. Does it matter that it wasnt?
Probably, but we are where we are. We all have to deal with it now. The
Internet is an egregious example of the doctrine of unforeseen and unin-
tended consequences.
The Industrial Revolution of the eighteenth and nineteenth centuries
has interesting parallels. The benefits of that revolution were and remain
overwhelming. Few would renounce them. It was not deliberately designed
to pollute rivers and poison the air or generate greenhouse gases in a way
which would eventually threaten to extinguish all life on Earth. Eventually
we caught on to the downside and began to take steps to address it.
The benefits of the Internet to society in general and in this case to chil-
dren and young people in particular likewise are immeasurable. It is hard to
find anyone who wants to turn the clock back completely even though daily
we read how the technology has led not only to the assaults on children
which Savirimuthu describes, but also to a host of other antisocial behav-
iours such as identity theft, breaches of national security, fraud, invasions
of privacy and so on. Few if any of these crimes are in and of themselves
wholly new but the Internet has recast and promoted them on a completely
new scale. Why are things allowed to continue in this way? Cant someone
tell someone else to put it right?
Here is where the special circumstances surrounding the Internet force-
fully rear their head. Governance. A key theme in Savirimuthus book.
Famously the Internet is borderless and can collapse time and space. Yet
it expresses itself in tangible ways, inside national jurisdictions within par-
ticular time zones. This can raise fiendishly difficult questions both about
whose law applies and how and by whom it might be enforced. The role the
Internet plays in much of modern social, economic and political life and, in
this context, the fact that children are in the middle of the mix adds greatly
to the sensitivities and tensions.
Henry Kissinger was once supposed to have said Who do you call to speak
to Europe? Even if the words never actually passed his lips this remains a
powerful metaphor. Who do you call if you want to speak to the Internet
industry?
In the beginning when one spoke about the Internet industry it gener-
ally meant only Internet Service Providers (ISPs), the companies providing
basic connectivity to cyberspace. Pretty obviously ISPs are still massively
important players. Without them there would be no gateway. They hold
basic information about users activities, information which is often essen-
tial to law enforcement investigations or other legal processes.
Today other kinds of online service providers have come to dominate the
value chain and public perceptions of what the Internet now is. Some of the
largest, best known, most successful and important online businesses have
only a marginal or no involvement at all in providing direct connections to
the Internet. They range from giants such as Facebook and Google through
to hundreds of thousands of small businesses perhaps being run by individ-
uals in their spare time from their garage, kitchen table or university dorm.
Hardware manufacturers produce ever more inventive and interesting
ways of going online. Some of these have a particular appeal to children and
young people. Sony, Nintendo, Xbox, Nokia, Samsung and Apple constitute
a major part of the modern ecology of the Internet.
Out of this latticework grew an expectation that private-sector actors
needed to embrace a larger set of responsibilities. Around the globe a range
of self-regulatory and co-regulatory models emerged, sometimes supported
or led by legislation and sometimes not, but all specifically designed to
address the interests of children and young people as Internet users. How
well they are working is discussed with great perceptiveness by Savirimuthu.
He provides us with a roadmap and an incisive commentary.
As we survey the terrain of governance we see that one of the key global
institutions responsible for the ongoing overall management of the Internet,
the Internet Corporation for Assigned Names and Numbers (ICANN), has
no direct representation from any Governments or any inter-Governmental
products works or what they should do to use them safely. Cant the same
magic and sparkle that delivered one also be turned on to deliver the other?
If not, why not? The word proportionality usually gets an airing about
now but, like beauty, proportionality is in the eye of the beholder.
My own view is that it is very much in the longer-term interests of the
Internet itself and in particular of the companies that currently dominate
it for Governments to be fully convinced that their legitimate concerns
for the welfare of their citizens, perhaps particularly in relation to chil-
dren and young people, are taken seriously and are acted upon reasonably
promptly. Otherwise there is a very great likelihood that not-so-eventually
Governments will conclude that Internet businesses are taking unfair ad-
vantage of the lack of any specific legislative or other body which could
hold them to account more directly. This will lead to the further and rapid
fragmentation of the Internet as different jurisdictions produce a variety of
locally grown solutions.
To some extent this is already happening. A number of countries have
introduced laws and regulations which they feel better suit their cultural,
legal and political traditions because their local branches of the Internet
industry have not come forward voluntarily to respond in what was con-
sidered an appropriate way. Savirimuthu documents many examples in an
accessible style which many non-lawyers will greatly appreciate.
The key point, though, is that for all the examples that can be pointed to
of local laws and regulation that might exist now, many more Governments
have refrained from such radicalism in the belief that a co-operative
approach will be better for everyone. Should faith in voluntary co-operation
finally be shown to be a fruitless path, a proliferation of new national or re-
gional laws and regulations will quickly follow.
In The Doctors Dilemma, written in 1911, George Bernard Shaw famously
observed that all professions are conspiracies against the laity. What he meant
was that groups of people who congregate around particular disciplines, be
they carpenters or astrophysicists, tend to develop ways of working, and
above all ways of describing what they do when they are working, which are
more or less deliberately designed to separate themselves from everyone else.
Maybe this does not matter very much if you work in a discrete or narrow
space but it matters a very great deal if, as with the Internet, your canvass
is pervasive and global. Savirimuthus book will have great value in helping
non-techies and non-experts everywhere to understand the nature of the
challenges. If, as we might reasonably hope, this leads to better-informed
decision-making on the part of companies and Governments, children and
young people on every continent will be in a much better place.
access to and use of Web 2.0 technologies. To paraphrase the opening obser-
vation of the EC Green Paper policy decisions now have the potential to
shape the way Web 2.0 technologies and social media are delivered to and
consumed by children (European Commission, 1996b,c). An imbalance in
online child safety governance has immediate and long-term consequences
the overreaching of protective and precautionary impulses can undermine
childrens autonomy and privacy. Conversely, indifference, apathy and ig-
norance can result in children exposing themselves and their peers to ser-
ious harm and abuse. Getting the balance right is an immense challenge.
As Fish J. observed in his opening passage in the Supreme Court of Canada
hearing in R v Legare (2009), the threats posed to children are embedded in
network structures and information flows:
This approach illustrates how safeguarding children also coheres with the
strategy of enhancing trust and confidence in their use of Web 2.0 tech-
nologies through dialogue and consultation with civil society (European
Commission, 2010e: 1516). The term children will correspond with
the definition provided by the UN Convention on the Rights of the Child
(UNCRC), namely, individuals who are below the age of 18 years. In this
book, the focus will be primarily on the activities of young adolescents, who
are within the age group of 13 and 18. With regard to the phrase online
child safety, it will have been observed that there is no comprehensive def-
inition. At best, we can view the phrase as a term of art used to describe the
context in which risks and threats to the safety and well-being of minors
are encountered (Palfrey et al., 2008). The Online Safety Technical Working
Group (OSTWG) adopts a similar view of the phrase online child safety by
emphasising the safety implications resulting from childrens consumption
of interactive technologies and social media (OSTWG, 2010: 4). The Byron
Report also noted that many of the risks encountered by children should
not be seen as being unique or exceptional to the online environment
(Byron, 2008: 5). For example, even though peer victimisation through the
use of mobile phones or online interactive technologies may suggest that
children are exposed to greater risks, this perception may be due to the fact
that many of the offline risks experienced by children are migrating to the
online environment as communication technologies become mainstream
in their daily lives (ibid., 2008: 6). We can, however, agree that online child
safety policymaking comprises a diverse set of issues that are directly or
indirectly related to the physical or psychological well-being of children
who use digital media (Gasser et al., 2010: 6). More specifically, these issues
originate from the difficulties faced in establishing the nature of electronic
communications, verifying the identity of the participants and controlling
the flows of communications.
which is the subject of Shariffs scholarly work, places the focus on the
need to confront the problems at source (e.g. schools) and argues that
the legal system should be engaged in a similar process and attend to the
unique features of technology-mediated violence (Shariff, 2008: 186). Ost
views many of the conundrums surrounding the role of the criminal law
in grappling with online sexual predators as being rooted in conceptions
of children that perpetuate moral panics and reactive policymaking (Ost,
2009). One of the purposes in writing this book is to assess the extent to
which the governance challenges these authors allude to can be explained
in part by our ongoing preoccupation with the need to maintain order
and certainty, particularly in the lives of children, by virtue of living in
a risk society (Beck, 1992a,b). The Internet and communication technolo-
gies appear to erode the dominant roles previously played by parents and
educators in socialising children (Castells et al., 2007: 161). There is an
evolving networked sociability, which is creating new outcomes to the
way children develop, socialise and conduct their relations with family,
educators, peers and society and consequently
Through the legal doctrine of in loco parentis, courts upheld the right of
schools to discipline students, to enforce rules, and to maintain order.
Rooted in the English common law, in loco parentis originally governed
the legal rights and obligations of tutors and private schools ... One of
the most sacred duties of parents, is to train up and qualify their chil-
dren, for becoming useful and virtuous members of society; this duty
cannot be effectually performed without the ability to command obedi-
ence, to control stubbornness, to quicken diligence, and to reform bad
habits... The teacher is the substitute of the parent; ... and in the exercise
of these delegated duties, is invested with his power. (2007: 26312)
Children have the right to be properly cared for and brought up so that
they can fulfil their potential and play their part in society. Their par-
ents have both the primary responsibility and the primary right to do
this. The state steps in to regulate the exercise of that responsibility in
the interests of children and society as a whole. (2005: paragraph 72)
The best interests of the child principle provides a flexible standard that
has been used as a foundation for policies and measures aimed at balancing
the protective and welfare elements with those of the childs right to au-
tonomy, privacy and self-determination (European Commission, 2011b). It
will be observed that many governments demonstrate their commitment to
these values as evidenced by States voluntary subscription to the UNCRC
Article 3 of the UNCRC makes clear that States have a responsibility in en-
suring that childrens physical and emotional integrity are safeguarded. The
online environment does not alter these guiding principles or for that mat-
ter the role of the State and parents in fulfilling their obligations in any
fundamental respect. Safeguarding children from sexual harm and abuse
in the online environment is one of the four priority areas identified by
governments in 2002 at the 27th Special Session of the General Assembly
on Children (Pinheiro, 2006).
Ongoing tensions
As we seek to fulfil our responsibilities towards children, we need to also
acknowledge the complex relations between the State and families, the
imprecise boundaries between childhood and adulthood (Madge et al.,
2007: 13) and the impact of the media on the role of adults in their rela-
tions with children (Prout, 2005: 11825). The solutions proposed by
policymakers and regulators to safeguard children cannot be easily disen-
tangled from the way society has traditionally constructed children and
their role in society and which has placed the Judiciary in an invidious
position (FCC v Pacifica Foundation (1978); Turner Broadcasting System v
FCC (1994)). Buckingham highlights the presence of not dissimilar ten-
sions, when television and video games became the staple sources of chil-
drens entertainment and lifestyle choices (Buckingham, 2007: 767). It is
not only the content of the broadcasts or media that raise parental anx-
ieties and fears; well before the emergence of the Internet and ubiquitous
computing, even public spaces populated by children were problematised
(Jenkins, 2003: 2630; Valentine, 2004: 27). Our traditional preoccu-
pation with childrens safety and well-being continue to be shaped by
cultural views of childhood and the resulting tensions have never been
fully resolved. Furedi, like many scholars who examine the sociology of
Online Child Safety: Law, Technology and Governance directs its focus on the
governance challenges raised by the problems of ascertaining the integrity,
authenticity and reliability of information flows and network infrastruc-
tures for our attitudes towards risks facing children and strategies for en-
hancing their safety in the online environment. It also seeks to understand
the governance challenges facing policymakers and articulates the signifi-
cance of emerging trends in the way compliance with child safety norms
are defined, communicated and enforced. It is often said that the laws role
in this area, particularly through the identification of the rules governing
acceptable behaviour, has now to be revised in view of the complexity of
managing a diverse array of online service providers, applications, and users
(Benkler, 2006). This is true, but the significance of the growing visibility
of legal standards and the increasing emphasis on the role and continued
relevance of UNCRC standards and principles by policymakers and gov-
ernance should not be underestimated. More importantly, it is not an ex-
aggeration to say that the evolving governance model is well upon us as we
witness a range of online child safety policies, strategies and measures being
pursued at domestic, regional and international levels, which cohere with
the standards and principles embedded in the UNCRC. An understanding
of these developments will help provide some clarity and understanding of
the MSIG model for safeguarding children. It is beyond the scope of this
book to engage in a detailed examination of the cultural, legal, techno-
logical and political dimensions of child protection. The topics chosen for
this book have been deliberately confined to three areas online sexual
grooming, child pornography and peer victimisation and primarily situ-
ated within the context of England and Wales, so that the governance chal-
lenges and responses can be identified and evaluated against those taking
place in other jurisdictions. The narrowness of the focus should also enable
us to better reflect the online child safety responses to the issues raised by
childrens interaction with the Internet and communication technologies.
Online child safety policymaking is both an intriguing and a distinctive
area of study, since most democratic societies adhere to the idea that its
regulations are premised on promoting the best interests of children (UN,
2006b; WSIS, 2005). Although the subject of childrens rights and the soci-
ology of childhood and child sexual abuse has been the subject of extensive
scholarly deliberation and commentary, there has been very little consid-
eration of the way networks and digital information, as pointed out pre-
viously, create a trust deficit which consequently implicates all non-State
actors and civil society in the information chain.
The basic argument of the book is that if the strategy of creating sustain-
able governance models is to be realised, a number of policy objectives will
primal forces that have been with us for thousands of years. These forces
of the cave, ... range from fearing predators, seeking food and shelter,
and nurturing our children to protecting our mate and trusting fellow
tribe members. (Dertouzos, 2001: 211)
Another answer might be that these are all responses to the way network
infrastructures and information flows distribute risks. These incidents also
illustrate how politicians, the mass media, law, industry and society con-
struct and respond to these risks (Garland, 2003). The events do not of course
tell us about growing societal preoccupation with enhancing the safety of
children in the online environment or even what it is about Web 2.0 tech-
nologies and childrens interaction with them that bothers us. Neither do
they hint at the burdens increasingly shouldered by the State, child wel-
fare organisations, law enforcement, parents and children in managing the
security risks accompanying their risk-prone activities (e.g. emails, use of
search engines and participation in network publics). The need to be seen
to respond to risks in itself becomes a preoccupation of many parents and
the communities in which they live. The US Presidents call for a commu-
nity response in dealing with one pernicious threat faced by children is
emblematic of a perennial dilemma for those living in a risk society. Risks,
as Ulrich Beck defines it, is a systematic way of dealing with hazards and
18
An overview
Beck identifies risk as a focal point in his study of the impact of the inter-
action between the State, industry and science on society in late modernity.
In Risk Society: Towards a New Modernity, he offers us a grand theory, depict-
ing the impact of techno-economic developments on society. He postu-
lates that the risk society is a catastrophic society where averting and
managing risks become norms rather than exceptions (Beck, 1992a: 24).
In focusing on the concept of risk, Beck, unlike Marx or Weber, is not par-
ticularly interested in addressing the class and economic implications of the
capitalist system of production (Lupton, 1999: 17). For him, the capitalist
modes of wealth creation and distribution not only produce increased ben-
efits and new opportunities for prosperity and development but they also
generate negative or destructive outcomes the logic of wealth creation,
he suggests, sets in operation processes by which risks are not only created
but they are also distributed to individuals across society. The ideological,
technological, economic and political imperatives, which sustain the logic
of wealth creation, produce risks that leave no part of society untouched.
Beck concludes that advances in technology and science now pose society
with a governance dilemma, since we can no longer be concerned
How society addresses this dilemma is in essence the risk society thesis
and very much a part of the challenges confronted by the MSIG framework
used to address online child safety issues. Indeed, it is a dilemma that con-
fronts policymakers grappling with the services, products and activities that
result from the convergence of networks, communications and information
(OECD, 2004). The World Summit on the Information Society (WSIS), in its
one of the central channels through which social identities are con-
structed in late modernity. Trust is fragile. Typically it is created rather
slowly, but it can be destroyed in an instant by a single mishap or mistake.
Once trust is lost, it can take a long time to rebuild. In some instances,
lost trust may never be regained. (OECD, 2003)
What is new about this risk is the degree of recognition and public dis-
cussion it has attracted over recent decades ... [the] risks presented by
released paedophile offenders are of high political and media salience
across much of the developed world. Within the UK, that salience con-
trasts markedly with a lower, albeit growing, level of public attention
and concern about child sexual abuse within the home by close family
members. (Ibid., 2001: 41)
Faced with the generative nature of risks created by the logic of wealth
creation, governments, institutions and individuals are faced with the pro-
spect of being overcome by these negative consequences (ITU, 2009d). Beck
argues that society in late modernity is unable to desist from establishing
control and reducing the uncertainty that actual (or potential) risks cre-
ate. However, it may be more accurate to say that government intervention
here has to do with fostering public trust and confidence in demonstrating
its ability to manage risks. We see Becks ideas resonate, for example, in
the security developments following the atrocities of the terrorists attacks
in the United States and London, concerns about nanotechnologies, mad
cow disease, severe acute respiratory syndrome (SARS), the anxieties re-
volving around the increasing sexualisation of young people and release
of ex-sex offenders into the community (Wilkinson, 2001; Handmer et al.,
2007; Papadopoulos, 2010; Hood et al., 2001: 412). Societys desire and
need for certainty and control is manifest in the way governments now
assume the role as managers of risk through the development of rules and
mechanisms for identifying, monitoring and responding to a wide range
of risks (Lofstedt, 2005). Individuals and institutions in society engage in
what Beck terms as reflexive modernisation; society preoccupies itself with
managing risks and becomes constantly dependent on mechanisms which
lead to risks being audited, expert advice being sought when formulating
policies and measures and regulations being designed to promote com-
pliance with legal standards and obligations (ITU, 2010b; OECD, 2003).
There are a number of examples even in the sphere of safeguarding chil-
dren from commercial sexual exploitation that bring to mind the politi-
cisation of risk and the process of reflexive modernisation taking place. For
example, at the World Congress III against Sexual Exploitation of Children
and Adolescents (WC III), it was noted that over 129 governments had
adopted and ratified the Optional Protocol and an increasing number of
These last references to the promise of security, the need for affirmation,
and a public highly attuned to risks and the cosmetic nature of some of
the interventions have a lasting impact on the sense in which risk-based
regulation is understood: the distinction between actual and perceived risks
becomes blurred and consequently contributes to societys continued anx-
iety about managing risks. Increasingly, the governance question is framed
not in terms of whether online risks facing children should be regulated but
what risk-based systems facilitate deliberative and participatory processes
that enable the child safety policies and standards to be attained without
compromising public trust (Graham, 2010: 2445). The latter is particu-
larly relevant as information networks and Web 2.0 technologies are seen
Risk Society begins where tradition ends, when, in all spheres of life, we
can no longer take traditional certainties for granted. The less we can rely
on traditional securities, the more risks we have to negotiate. The more
risks, the more decisions and choices we have to make. (Beck, 1998: 10)
(Garland, 2003; Giddens, 1991). These threats and risks are not immedi-
ately identified since they exist in multiple communication platforms and
in environments of collapsing national and international boundaries. The
transition to a risk society also has important consequences for the way risks
generated have now to be managed. For example, governments now have to
assess, manage and regulate risks in society (Beck, 2002). Individuals in so-
ciety, for example, are also vested with the responsibility for managing their
affairs as traditional insurance and social infrastructures for maintaining
cohesion are gradually loosened. The distinctive features of online safety
risks are that the producers, managers and protesters of risks are in
effect the State, the ICT industry and, indirectly, educators and parents who
make the products and services available to children (Van Asselt et al., 2009:
360). This characterisation is important since many of the stakeholders
assume an important role in the governance process and make decisions on
the risk management strategies to be adopted. At the high level of regulatory
theory a number of developments have taken place, which have undoubted
implications for the way policymakers think about online child safety gov-
ernance issues. In Canada, a policy document was produced to look at the
effects of risk-based regulation (Government of Canada, 2004). Others have
defined the risk-based governance in terms of the barriers to developing in-
novative regulatory responses. Policymakers in the European Commission
highlighted the role of the precautionary principle as a touchstone for man-
aging risks in conditions of uncertainty (European Commission, 2000).
With childrens increased exposure to Web 2.0 technologies, policymak-
ers have also framed responsive risk governance in terms of worst-case sce-
narios peer victimisation, children meeting sexual predators, exposure
to illegal and age-inappropriate content and children accessing self-harm
and suicide websites. These risks are understandably difficult to quantify
and, consequently, provide the justification for pursuing reflexive regula-
tory strategies and measures. The reflexive responses underscore the height-
ened awareness of the scale and complexity of managing risks and anxiety
and the need to ensure that risk management becomes an ongoing policy-
making priority. There is concern that such anxieties, if left unchecked, may
lead to overregulation or result in policymakers targeting individuals or
organisations to assume responsibility for managing these risks (Sunstein,
2007). From a governance perspective, prioritising the regulatory agenda
becomes a legitimate objective. For example, in response to the growing
concerns about the impact of online security threats on user trust and con-
fidence, the Australian government has undertaken a series of studies with
the aim of identifying priority areas for risk management (ACMA, 2009c,d).
Governments now regard encouraging parents and educators to supervise
closely the activities of children aged 57 as a legitimate child safety ob-
jective (ITU, 2009b,c). Broadcasters, the Internet industry, Internet service
providers (ISPs) and online service providers are encouraged to implement
mean world syndrome [which] says that, because of the medias attrac-
tion to reporting the worst in human nature, people think the world is
much more violent and dangerous than it actually is. It is certainly more
dangerous than how most of us experience it. (Ohler, 2010: 143)
Even though this is not a book about the protocols and architecture of the
Internet, some appreciation of its function and design principles is neces-
sary if we are to begin to understand the relationship between the logic
of information flows, the new channels for risk distribution and anxieties
about childrens safety and well-being and the attainment of the three gov-
ernance objectives. To this end, the discussion will address three aspects in
turn: the design and architecture of communication technologies, conver-
gence between youth culture and technology and the policy implications
arising from the interaction between the technical infrastructure and de-
sign, online security threats and risks and governance challenges.
This extract highlights two particular aspects with regard to the interaction
between the architecture of the Internet and its design principles. First, the
design principles and architecture can be likened to providing engineers
and programmers with tools and a medium through which information can
be disseminated across networks and represented as text, images and sound.
The fundamental design principles shaping much of the work undertaken
by these individuals in creating a technical communications infrastructure
were those of interoperability, decentralisation and non-discrimination
the information space was to be an environment that was capable of being
accessed by anyone, from any country and from any computer or commu-
nication device (Berners-Lee, 2000: 37; Table 2.1). As we will discover later,
the technological affordances and the channels through which informa-
tion flows can now be accessed owe much to the priority given to design
rather than security principles (Dertouzos, 2001: 209). Security principles,
like those relating to confidentiality, integrity, authenticity and availability,
Table 2.1 Tim Berners-Lee design principles for the World Wide Web
are concerned with managing the flow of information so that the right in-
formation is made available to the right persons, at the right time and at the
right place (OECD, 2002a).
The design principles are reflected in the protocols now used by online
intermediaries and mobile phone companies to provide users with oppor-
tunities to exchange information, and view or experience social media on
a variety of platforms (Lane, 2008). Protocols are rules, which enable
networks to connect with each other. The Internet is in essence based
on a number of protocols known as the Transmission Control Protocol/
Internet Protocol (TCP/IP). Accordingly, the adoption of protocols ena-
bles files to be transferred, emails to be sent and information in all forms
to be stored and disseminated. The TCP/IP protocols can be categorised
into four functional groups or layers, which enable users to exchange
content over networks (Table 2.2). These relate to Content, Application,
Transport, Internet protocol, Link and Physical properties like cables and
wires (Solum et al., 2004).
Second, many of the innovations and developments that we see today
(i.e. Smartphone, portable media devices and multimedia communication
platforms) can be traced back to the design principles and the architecture
of the Internet (OECD, 2008a). The development of software applications
and ready availability of broadband connectivity has contributed greatly to
the emergence of a vibrant communication ecosystem (ITU, 2009a; OECD,
2010a). P2P file-sharing technologies, voice over Internet protocols (VOIP),
wireless connectivity, mobile applications, cloud computing and next gen-
eration mobile phones enhance economic and social activities by enabling
individuals and organisations to access, create, store and distribute infor-
mation. Social networking sites like Facebook, Bebo and MySpace enable
Application layer
There are user protocols aimed at providing users with online services.
Examples include services for remote login (Telnet), transfer of files (FTP), sending
email (SMTP) and exchange of information between a web client and web server
through HyperText Transfer Protocols (HTTP)
Other examples of applications include voice over internet protocols, P2P file-
sharing applications and web browsers (e.g. Firefox and Internet Explorer)
There are support protocols which address system functions
Transport layer
This layer provides end-to-end communication services for applications.
The Transmission Control Protocol (TCP) provides a connection-oriented
transport service
The User Datagram Protocol (UDP)
Internet layer
The Internet Protocol (IP) enables any set of hosts to exchange data packets
Internet Protocol version 4 (IPv4)
Internet Protocol version 6 (IPv6)
Internet Protocol Security (IPsec)
Link layer
A link layer protocol enables communications on directly connected networks.
For example, organisations may have local area networks which implement
standards like Ethernet
Source: RFC 1122, Available at http://datatracker.ietf.org/doc/rfc1122.
From its start, the Internet was oriented differently from the proprietary
networks and their ethos of bundling and control. Its goals were in some
ways more modest. The point of building the network was not to offer a
particular set of information or services like news or weather to custom-
ers, for which the network was necessary but incidental. Rather, it was to
connect anyone on the network to anyone else. It was up to the people
connected to figure out why they wanted to be in touch in the first place;
the network would simply carry data between the two points. (2008: 27)
It is not an exaggeration to say that without the four functional layers and
its underpinning design principles, we would not have seen the acceleration
of a networked society comprising online intermediaries, network operators
and commercial product manufacturers (OECD, 2010a). Neither, it should
be said, would the absence of the functional layers have created the neces-
sary incentive structures for the ICT industry, online services providers and
mobile operators to make available products and services which mirrored
consumers need for immediacy, intimacy, community and information
(Lane, 2008: 57).
The advances in communication technologies and the ubiquity of com-
puting represent an important paradigm shift in the way the logic of sustain-
ing information flows frames economic, technological and cultural activity
(Castells et al., 2007). Mobile phones, for example, now come packaged with
software applications, widgets, and Wireless Application Protocol (WAP)
that have standard web technology components to enable users to engage
with the others in online environment (Lane, 2008). One study forecasts
not only the growth of mobile social networks but it is also expected that
this trend will culminate in transforming the way individuals in society
will interact and communicate (ibid., 2008: 15). The OECD Working Party
on Telecommunication and Information Services Policy observed that [c]
onvergence in electronic communications is bringing together industries in
the communications area which were previously viewed as separate in both
a commercial and technological sense, and which have quite distinct regu-
latory traditions and arrangements (OECD, 2004: 5).
Convergence in broadcasting, telecommunication and entertainment
impacts a wide range of economic and social activities. Consequently, gov-
ernments and regulators continue to be alert to the public interest issues
raised by the ubiquitous computing environment (Schewick, 2010: 202,
378). Many child safety issues are increasingly linked to the governance
implications arising from the ICT industry and online services providers
leveraging the capabilities of networks and telecommunications. Childrens
consumption of new technologies now provides a catalyst for a whole
range of technical issues confronting online intermediaries, the Internet
Engineering Task Force and the World Wide Web Consortium (W3C)
(WGIG, 2005). From a child protection perspective, the interaction between
childrens consumption habits and the individualisation of risks has also led
to a re-examination of how risks can be better managed by the ICT industry
and related online service providers (WSIS, 2003). With the convergence
of the broadcasting and telecommunication sectors, and the emergence of
new online services providers, risk-based regulation efforts continue to be
directed at promoting sector-specific assessments, standard setting initia-
tives and improving compliance (ITU, 2009d; WSIS, 2005). This process of
reflexive modernisation is depicted in the technical literature as the end-
to-end arguments. In a highly influential paper written in the early 1980s,
The allocation of specific applications and services away from the core of the
system were seen as reducing the demands on the lower-level system and
ensuring efficiency, reliability and flexibility gains (Blumenthal et al., 2001:
71). Despite the seeming elegance and simplicity of the end-to-end argument,
the premise is clear: the logic of information flows is seen as requiring, if
not compelling, the end points (i.e. those who make the technology to be
consumed, those who make consumption of online services and technology
possible and those who consume the technology and services) to assume ul-
timate responsibility for managing and allocating responsibility for risks. For
example, under the end-to-end principle, the architecture of the Internet in
effect vests the responsibility for managing risks, to varying degrees, with the
various participants in the information chain. Recall that the applications
are situated at the core of the Internets technical infrastructure, and, conse-
quently, the functional layers do not discriminate as to the type of content
being sent and neither do the information flows make the characteristics of
the senders and recipients immediately discernible to end users. The end-to-
end principle, as originally formulated, can also be seen as reflecting an ideo-
logical preference for limited State intervention, with market rules and norms
being seen as appropriate instruments for regulating the telecommunications
and broadcasting industry. The debates that we now witness in online child
safety governance regarding the role of online intermediaries involves, in
essence, an argument about how the negative consequences of information
flows are to be managed by the existing framework for regulating telecom-
munication services across network infrastructures and content that can be
accessed from these platforms. For example, mobile phones and Smartphones
now incorporate a bundle of software applications into their hardware. The
aim of these measures is to provide consumers with a wide range of services
and access opportunities. With these benefits, and mindful of the end-to-
end principle, mobile and online content service providers are now vested
with the responsibility of ensuring that the information accessed through
their products and services correspond with national content standards and
policies (ITU, 2009d). The end-to-end principle also confronts policymakers
Young people, on the other hand, do not see the Net as a distinct entity or
environment. It is simply one more space in which they live their lives
connecting with friends, pursuing interests, figuring out what it means
to be a teenager and a grown up. (Media-Awareness, 2005)
another way. Benkler observes that participatory cultures deviate from the
norm of hierarchical and centralised models for coordinating interactions
and a key aspect of this improvement
Because of the always there, always on status of the mobile and the pace
of exchange of information, and because the mobile is the key personal
communication device for so many young people, it becomes important
in establishing social norms and rules and in testing ones own position
in relation to the peer group. (Stald, 2008: 14364)
Her findings correspond very much with the ongoing work by Ling on
mobile phone use. In his research, Ling rejects any suggestion that mobile
phone use is exceptional or novel; rather, he sees the mobile phone as a
tool through which ritual social interactions and social bonding take place
(Ling, 2008). Communication technologies are instruments for expression,
cultural interaction and identity experimentation (Stern, 2007). In her
study involving the use of communication technologies by adolescent girls,
Stern noted that IM tools were not simply tools for transmitting informa-
tion or content but that they were also utilised to create communities and
establish norms of behaviour. There is also a sense, in reviewing the studies
from the Kaiser Family Foundation and the Pew Internet & American Life,
that young children view interactive technologies as private communica-
tion spheres where intrusions by parents and other persons are kept to a
minimum (Rideout et al., 2010; Lenhart et al., 2008). Social networking, re-
gardless of whether it takes place on a mobile phone or personal computer,
is the digital equivalent where children
hang out, jockey for social status, work through how to present them-
selves, and take risks that will help them to assess the boundaries of the
social world. They do so because they seek access to adult society. Their
participation is deeply rooted in their desire to engage publicly. (boyd,
2007: 137)
MMORPG/vir- Chat/IM/
tual worlds Blogs SNS mobile
very much in evidence in the way children use these sites to interact with
each other. Disclosure of information is regarded as part of the process of
gaining access to online communities and interacting with others. For ex-
ample, social network sites allow users opportunities to disclose a range of
personal information identity, age, gender, and address. The decision to
disclose personal information like screen names, preferences and contact
details may be based on a number of factors: the perception of relative safety
of the online communication platform, opportunities to make friends and
share similar interests, identity experimentation, anonymity, the accessi-
bility of tools for managing risks and the absence of parents and educators
in these communication spaces (Lenhart and Madden, 2007c). Social net-
working sites also fulfil the need of users to define their communities and to
be connected with others. Consequently, search directory services provide
individuals with opportunities to seek out friends and lifestyle interests.
Identity and sexual experimentation is also very much a part of the network
sociability, and the transition from adolescence into adulthood. To some
children, the anonymised and disintermediated environment provides
them with an opportunity to experiment with different persona and life-
style experiences. Others use the online environment to seek assistance and
support from their peers (Livingstone et al., 2011). Whilst chat and IM cre-
ate invaluable spaces for social interaction and learning, the Youth Internet
Safety Survey 2 reported that children were also using communication plat-
forms and tools to assert their autonomy and identity by engaging in discus-
sions about sexual preferences and lifestyles (Mitchell et al., 2007c).
This overview of the rich participatory culture, which defines childhood
in the networked society, contains three important lessons for risk-based
governance. First, the very same activities, which are celebrated by Web 2.0
enthusiasts, are regarded as potentially risk-prone activities, even though
these may not be readily quantifiable (Asselt et al., 2006). Second, the fram-
ing of the risk-prone behaviour will inform online child safety governance
policymaking and strategies (Mitchell et al., 2007a,b). Third, social construc-
tions of childhood will influence the expansion of the precautionary prin-
ciple to address not only risks but the resulting uncertainties surrounding
childrens risk-prone behaviour, and perhaps confirm the politicised nature of
online child safety governance (James et al., 1997). The latter is of particular
relevance as politicians and law enforcement may respond to public concerns
about the effects of particular harms and risks by seeking the private sector to
communicate and justify their risk management strategies and responses.
It may be useful to spend some time reflecting on how Web 2.0 tech-
nologies and affordances lead to businesses and industry becoming risk
producers and agents in the distribution and individualisation of risk (Van
Asselt et al., 2009: 35960; Table 2.4). In a highly competitive environment,
the business models of social network providers like Twitter, Facebook and
MySpace and the mobile phone industry recognise the value of innovation.
Online service providers and manufacturers of new technologies align their
services with the needs of their users. For example, mobile phone operators
Features which
are most
Category Description frequently used Text Photo Video App
now ensure that their services and devices avoid overcrowding or creating
overly complex user interfaces (Lane et al., 2008).
Mobile phones continue to be packaged with software applications which,
allow users to send SMS texts and take photographs with ease. Virtual worlds
have become popular online environments for many children. These are
applications that leverage the architecture of the Internet and provide users
with an online environment. Users of these applications can interact with
each other through a persona, known as avatars, and communicate through
the use of text and icons. Virtual worlds have also expanded to provide users
with entertainment and games, which can involve a large number of players
not confined to any particular geographical locality. In a recent report it was
stated that more than $1.38 billion was invested in 87 virtual goods-related
companies. According to the Virtual World Management (now Engage Digital
Media), there are over 200 youth-oriented virtual worlds (which includes
those which are planned or in active development).1 The figures show an
increase, when compared with 150 virtual worlds in 2008. The growth area
appears to be in the market for children with three sub-categories represent-
ing the age groups 7 and below, 8 to 12 and 13 and above. Some examples
of virtual worlds for children include Club Penguin, Webkinz, Barbie Girls,
Moshi Monsters, Lego Universe and Adventure Rock. The demographics of
these sites suggest that the reasons children access these sites are not dissimilar
to those we have seen in other mobile social networking environments (Lim
et al., 2010). Children are provided with tools to enable them to participate
in communities, share interests and make friends, develop their identity and
create user-generated content (Jackson et al., 2009; Marsh, 2010).
In summary, the logic of network infrastructures and information flows
illustrate the democratic, developmental and social opportunities that
Web 2.0 technologies make possible. These are evident in three areas. First,
technological affordances create new spaces for communication. Second,
communication tools are imbued with social and cultural meaning and
these are reflected in the way users negotiate social norms, relationships
and their individual identities. Finally, children can exercise their new-
found autonomy, which may not be hindered or governed by parental rules
and norms. Integrity, reliability and authenticity are assumed to be the ne-
cessary pre-requisites for engagement, affirmation and self-validation. Web
2.0 technologies provide society, and children in particular, greater choices
and opportunities. More significantly, in the light of Becks risk society, the
expanding networked society now has in place the necessary conditions,
which enable risks to be distributed, communicated and individualised.
Individualisation also brings with it a heightened awareness of the risks
that are generated from engagement with digital content and network pub-
lics. More importantly, as children now discover their newfound autonomy,
it is important to note that they still continue to engage in these activities
within a patriarchal society, which considers them to be vulnerable, risk-
prone and which, crucially, defines the rules within which these freedoms
are to be enjoyed (Castells et al., 2007: 1467). In the next section we will
identify the different dimensions of risks, how these are related to Web 2.0
technologies and its implications for child protection policymaking.
910 and 1214 (Eurobarometer, 2007). Online child safety governance has
to address the child protection issues emerging from children as users/con-
sumers and the risks generated by misuse of network infrastructure and
communication technologies (Brenner, 2010). The online environment
creates incentives for behaviour that we ordinarily would not encounter in
the offline environment. Yar points to the exceptional nature of the social
interactional features of the cyberspace environment which contributes
to the growth of illegal activity and vulnerabilities (2006: 12). This is per-
haps misconceived. At best, the online environment can be seen to raise
intractable problems of policing and enforcing domestic laws and regula-
tions (Brenner, 2010, 16376). What perhaps distinguishes networked com-
munications and information flows from their real space equivalents are
the speed, scale and frequency with which deviant criminal activity can
be perpetrated and the compliance issues they generate for national legal
systems. However, it should be said that even though the risks are unex-
ceptional, they are essentially invisible and their materialisation uncertain
(Van Asselt et al., 2009: 3601). How we identify, assess and respond to risks
is a perennial problem for designing effective risk-based regulation proc-
esses. The significance of the rhetoric of safety and its relationship with
Becks risk society is explored more fully below.
that the networked society generates risks that cannot be easily managed and
controlled. Some continue to view the characteristics of networks and infor-
mation as the cause of social disorder and uncertainty reminiscent of the
wild, wild West (Chisholm, 2006: 75) Policymakers have responded to the
growing anxiety by adopting managerial strategies like identifying the risk
categories as well as the activities that expose children to unacceptable risks
to their safety and well-being. Accordingly, studies have been undertaken
to help inform policymakers, law enforcement, parents and educators about
the relationship between childrens online activities and incidents encoun-
tered in these environments. Managing risk and uncertainty involves a pro-
cess of generating surveys, studies, reports and research. The EU Kids Online
Project is an apt example of one reflexive modernisation activity where em-
pirical surveys and studies are regarded as an appropriate basis for promoting
informed decision-making and formulation of policies (Table 2.5).
Even as a general overview of the nature of the online child safety gov-
ernance challenge, this taxonomy provides us with a snapshot of Becks risk
society risk, reflexive modernisation and individualisation of risks. It also
illustrates a potential dilemma for governance strategy since a scientific ap-
praisal of the risks is not readily possible as the likely materialisation of the
harm is uncertain until a series of causal behaviours are engaged in. For ex-
ample, faced with media and law enforcement reports of the threats posed
by online sexual predators, policymakers take the view that the potential
risk under conditions of uncertainty must be avoided by implementing rules
and precautionary norms (e.g. privacy rules, filtering software, parental con-
trol rules and children being encouraged not to speak with strangers). The
Olsen is quick to add that the existence of these characteristics does not invari-
ably lead to a meeting or abuse. The problems in establishing the identity of
online participants and the ease with which some adults have used social en-
gineering techniques to solicit minors for sexual activity have raised concerns
about the security of these communication platforms for children. For ex-
ample, in R v Newman (2010), the offender set up false identities in chat rooms
accessed by young people with the aim of identifying prospective victims. In
R v Asplund (2010), the offender had at his disposal a wide range of communi-
cation tools (e.g. mobile phones, SMS text messages and the Internet)
to feed into and gratify his sexual titillation and fantasies with a long term
view of having her submit to sexual activity with him ... demonstrated by
his use of the Internet to persuade her to send him photos of a highly
intimate and sexual nature, by his access to resources to shower her with
money and bombard her with communications, by his toying and ma-
nipulative Internet exchanges earlier referred to. (2010: paragraph 7)
Apart from the risk of children meeting their online contacts face-to-face,
it is also becoming apparent that a number of offenders use chat rooms and
IM to engage in discussions with children about sexual matters as a way of
self-gratification and grooming a child for non-contact sexual activity. These
hit and run tactics have been particularly noticeable with the emergence of
webcams. Online sexual solicitation can be broadly understood as the pro-
cess by which a sender aims to procure a child to engage in sexual activity or
other forms of sexual gratification. This can include flirtation as well as more
explicit forms of sexual activity (McQuade et al., 2008). Online sexual solicita-
tion is one of the major parental concerns and source of anxiety and distress.
In Australia, over 47 per cent of the parents in a survey expressed fears about
their children talking to strangers (ACMA, 2009b: 75). In a recent study, it
was pointed out that children received most online sexual solicitations from
their peers or individuals from the age groups of 18 and 21 (ISTTF, 2008:14).
The Child Exploitation and Online Protection Centre (CEOP) highlighted a
rise in reports about grooming activity in online environments frequented by
children (CEOP, 2009). The report notes that CEOP investigations increased
from 20 per cent in 2006/7, 40 per cent in 2007/8 to 48 per cent in 2008/9
(CEOP, 2009: 812). It is also apparent, as the study conducted at the Crimes
against Childrens Research Centre points out, that one in five minors tend
to be solicited online (Finkelhor et al., 2000; Wolak et al., 2006). There are
a number of explanations for online solicitations of young children in par-
ticular. Adults, with an interest in young children can, for example, come into
contact with children without an actual meeting in a physical environment.
Social networking sites provide a range of facilities for gathering information
(Kim-Kwang, 2009). Public directories on social networking sites contain a
wealth of information, which are set out under various headings groups,
age, name, email, location and gender. Profile information, comment and
dialog tools and syndication feeds Really Simple Syndication, for example,
provide offenders with mechanisms for monitoring their victims and gather-
ing any new information uploaded by them. The task of identifying targets
and gathering information about potential victims begins with perpetrators
accessing directories on social networking sites and participating in chat
rooms frequented by children (Kontostathis et al., 2010). For example, de-
pending on the privacy settings of the child and those on the childs network
of friends, the acceptance of the offender as a friend on the social networking
site will give the individual immediate access to the childs posts and profile
pages. Most online sexual solicitations with children take place after an of-
fender has gathered all the information about potential victims and assessed
their amenability to being approached. The Provincial Court of Nova Scotia,
in the trial of R v Randall (2006), was told that the accused logged into Internet
chat rooms and scanned the profiles and communications before identifying
his potential child victims. In R v Gajjar (2008), the offender used chat rooms
on the Internet entitled Family Sex to engage in grooming activity. Online
forums like these involve participants being favourably disposed towards
sexually graphic communications. The offender in Tector v R (2008) used a
pseudonym to send emails and text messages to persuade the victim to en-
gage in sexual activity and even provided financial inducements. In R v Dragos
(2010), the offender met the complainant on an Internet chat room called
Habbo Hotel. This communication platform is designed to enable its users to
discuss the sale of items of furniture for hotel rooms, and socialise with each
other. The accused and the complainant used webcams to engage in non-
contact sexual activity and communicated frequently through MSN. In all
these instances, offenders tended to exploit the fact that electronic communi-
cations do not require face-to-face contact, and their belief that children were
unlikely to disclose these interactions to parents or educators (Livingstone et
al., 2011). Webcams have also been used by individuals to record live images
of children, which were subsequently stored, distributed or uploaded onto a
website. In some cases, offenders have used images or conversations involving
children they have been conversing with to coerce them into engaging in
non-contact sexual activity, or arrange a face-to-face meeting. Malware have
been used to allow individuals gain unauthorised access to a childs computer
system, buddy lists, and webcams. On July 2010, a hacker broke into a childs
computer, and gained remote access to the webcams of 150 girls (Deutsche
Welle, 2008). Recently, a 25-year-old man coerced a 11-year-old girl to engage
in acts of indecency in front of her webcam (Chong, 2010). He recorded these
acts and threatened to release the images on the Internet unless she complied
with his requests. According to the CEOP,
there is also a marked trend of the use of webcam streaming chat sites,
enabling offenders to interact either through instant messages and/or
It is not always the case that adults seduce young adolescents (R v Grout
(Phillip) (2011)). Some children lie about their ages or even pretend to be
older than they actually are, so that they can engage in non-contact sexual
activity with persons they meet online. Many children, it seems, are at ease
with interacting with strangers online (Wolak et al., 2008: 3423). Wolak,
Finkelhor and Mitchell point to the findings from a survey which show
that young children also use the freedom and anonymity offered by Web
2.0 technologies to gain the necessary sexual experience and confidence,
which can later be used by them to develop relationships in the offline en-
vironment (Wolak et al., 2006). In a study by Finkelhor, Mitchell and Wolak,
if was found that 7 per cent of the children interviewed engaged in sexual
conversations with strangers in chat rooms (Finkelhor et al., 2000). Some
children have been known to engage in the practice of setting up jailbait
webcams where teenagers create profiles on websites, with links offering
sex shows and photographs for financial reward. The accounts also sug-
gest why childrens online activities generate so much anxiety and concern
notwithstanding the fact that for the majority of children who do not like
unsolicited sexual attention simple measures can be adopted to deal with
such situations (Wolak et al., 2006). The task of making accurate risk assess-
ments is also complicated by the fact that childrens online interactions
with strangers cannot be invariably depicted as harmful. In an important
study funded by the European Commission, it was found that 30 per cent
of their sample of Internet users formed a friendship with someone they
had met online (Livingstone et al., 2005a). Eight per cent of them had met
the person face-to-face. The majority of these meetings were positive, and
where face-to-face meetings did take place, the child concerned often took
a friend or parent with them, or told someone where they were going in ad-
vance. In a report issued by the Internet Safety Technical Task Force (ISTTF),
it was noted that non-technology-mediated sex crimes against children out-
weighed those perpetrated through the Internet (ISTTF, 2008: 10). These
accounts of the risk-prone nature of childrens online activities illustrate the
difficulties faced by parents and educators in making a proper assessment
about how best to manage threats posed by online sexual solicitation as the
traditional visual and safety cues are not present in electronic interactions.
2011a: 52, 57). We can categorise problematic content that children can
access or be exposed to into those that are illegal (e.g. child abuse content)
and those which are inappropriate or harmful (e.g. pro-anorexia, bulimia
and dating websites). In many countries there are content classification
schemes which define the subject matter that can be made available to a
general audience and those which are illegal. Childrens access to and use
of the Internet can lead to potentially harmful or age-inappropriate content
being accessed either deliberately or inadvertently. A number of websites
hosting adult content do not provide effective age-verification controls
most websites providing such content only provide a notice requiring the
visitor to verify that they are of an age where access to adult content is per-
missible. Search engine operators like Google or Yahoo provide tools which
enable individuals to access adult material, images and videos. A number of
websites also host user-generated content, which can be accessed for free,
and do not have effective age-verification tools. The lack of effective age-
verification controls is confirmed by surveys and reports (Livingstone et al.,
2005a; Ybarra et al., 2005).
OfCom found that around 16 per cent of children aged 8 to 15 encoun-
tered inappropriate or violent content when using Web 2.0 technologies
(2006: 45). A survey of children aged 9 to 10 and 12 to 14 across 29 coun-
tries found that children had either encountered violent or pornographic
websites or harmful content (Hargrave, 2009: 8). This is a finding that is
also mirrored in national reviews undertaken in countries like the United
States and Australia (OSTWG, 2010: 1416; ACMA, 2009b: 43). The studies
did, however, indicate that children regarded encounters with problematic
content as being of less concern than, for example, harms caused by mal-
ware and viruses. The 2008 Eurobarometer Survey revealed that over 65
per cent of parents feared that their children may be exposed to sexual or
violent content or images of an explicit nature (Eurobarometer, 2008: 5).
Childrens exposure to inappropriate and harmful content is an important
online child safety issue. Many children reportedly use the Internet to
access inappropriate and harmful content like self-harm and suicide (Royal
College of Psychiatrists, 2010: 52). What concerns educators and parents is
that whilst a number of websites provide children with invaluable assist-
ance, there is some evidence of certain websites normalising the practice
of self-harm and suicide (Whitlock et al., 2006; Hargrave et al., 2006). More
worryingly, it has been reported that children are increasingly accessing in-
formation from online pro-eating disorder and self-harm communities (Fox
et al., 2005: 94471). Self-harming behaviour, for example, is now regarded
as a major public health problem (Hawton et al., 2005: 8914). The Royal
College of Psychiatrists also reported that 4 in 1,000 people in the United
Kingdom have harmed themselves (Royal College of Psychiatrists, 2010).
Children as young as eight years old have been found to harm themselves
and adolescent girls were more likely than boys to engage in the practice
(Royal College of Psychiatrists, 2010: 31). One in five schoolchildren with a
history of self-harming first discovered about self-harm from material they
accessed online (Whitlock et al., 2006). It also appears that without timely
intervention those children who are most at risk or vulnerable are likely to
accept the accuracy and reliability of the information presented to the det-
riment. There is also particular concern with regard to childrens access to
racist or xenophobic material on websites, since it is felt that consumption
of such content could encourage prejudice, reinforce stereotypes and even
incite bullying or other forms of peer victimisation (Ray et al., 2001). In
addition to these concerns other technological affordances like emails, IM
and social networking sites now provide individuals with another medium
for engaging in race- or gender-related abuse (Defeis, 1992; Blumenfeld et al.,
2010). The Byron Report advocated the use of education and regulatory
mechanisms (e.g. codes of practice) to reduce the availability of harmful
and offensive content (Byron, 2004: paragraph 4.3443). Interestingly, the
Report did not regard the requirement that web hosts remove material about
harmful behaviours from their sites as a sustainable risk management re-
sponse (ibid.: paragraph 4.33). One recurring view is that the public interest
would not be served by blocking access to such content since [b]anning
such content risks driving vulnerable young people away to more obscure
sites (Byron, 2008: paragraphs 4.3536) Even if the UK government did de-
cide to make access to inappropriate content unavailable to children, these
are likely to provoke objections from industry on the ground that the puta-
tive harms are more effectively addressed by educators and parents through
the provision of relevant safety information and tools. In addition to this,
it should be noted that technical solutions like filtering and blocking have
undoubted limitations as a content regulatory mechanism. In a recent
study funded under the SIP it was reported that many Internet filters did
not adequately regulate the various forms of age-inappropriate or harmful
content found on social networking sites, chat rooms and blogs (European
Commission, 2011a).
Peer victimisation
There is general consensus that communication technologies now bring to
the forefront increased opportunities that mobile phones and the Internet
provide for victimisation (Lenhart, 2007). Bullying can, for example, take
place through texts, emails, mobile phones or on social networking sites. Acts
of coercion include the unauthorised distribution of texts and embarrassing
images of children and film clips of victims being subjected to assaults,
known as happy slapping. Private information posted online have also
been copied and distributed without the owners consent, with the aim of
causing distress. In a recent study undertaken in Iowa, United States, it was
found that transgender bullying was quite common amongst young adoles-
cents (Blumenfeld et al., 2010). Blumenfeld and Cooper noted that lesbian,
gay, bisexual and transgender individuals were increasingly subjected to
victimisation by peers on social networking sites and other communica-
tion platforms (2010: 210). We should also add to this category of victims
children who are disabled or who have particular learning difficulties (TK v
New York City Department of Education (2011)). A three-year study in Australia
noted an increase in peer victimisation (Cross, 2009). This study was com-
missioned by the Australian government amidst growing anxieties over the
use of communication technologies to engage in covert bullying and the
findings confirm growing concerns shared by policymakers in many coun-
tries about the scale of peer victimisation and its impact on victims and
perpetrators (see Table 2.7).
In their studies on childrens use of technologies Hinduja and Patchin sug-
gest a close correspondence between increased consumption of Web 2.0 tech-
nologies and the rise in childrens exposure to victimisation and, in a number
of cases, participation in the deviant activity (see Tables 2.8 and 2.9).
These communication platforms are also venues where peer victimisation
is encountered (Kowalski et al., 2007; Patchin et al., 2010a,b). Consequently,
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I have I have One or more I posted I spread I threatened threatened I pretended I posted a I posted a I created a
I want to thank all of you for joining us here today to discuss an issue
of great concern to me and to Barack, not just as President and as First
Lady, but as a mom and a dad. And that is the problem of bullying in our
schools and in our communities ...
As parents, this issue really hits home for us. As parents, it breaks our
hearts to think that any child feels afraid every day in the classroom, or
on the playground, or even online. It breaks our hearts to think about
any parent losing a child to bullying, or just wondering whether their
kids will be safe when they leave for school in the morning.
And as parents, Barack and I also know that sometimes, maybe even a lot
of the time, its really hard for parents to know whats going on in our
kids lives ...
But parents arent the only ones who have a responsibility. We all need
to play a role as teachers, coaches, as faith leaders, elected officials, and
anyone whos involved in our childrens lives. And that doesnt just mean
working to change our kids behavior and recognize and reward kids who
are already doing the right thing. It means thinking about our own be-
havior as adults as well. (White House, 2011).
Two further observations need to be made with regard to the process of re-
flexive governance in the area of online child safety. First, risk-taking behav-
iour amongst children is conceptualised in negative terms whether it is in
virtual worlds, social networking sites or network publics. It is readily assumed,
for example, that childrens exposure to potential (or perceived) contact and
non-contact risks results from their willingness to disclose personal identifi-
able information online, their immaturity and lack of understanding about
the nature of the risks. It is true that one of the consequences of being con-
nected with communication networks is that everyone is potentially at risk,
even though paradoxically, it is unlikely to be experienced by all individuals.
Interestingly, childrens online activities and use of Web 2.0 technologies
are singled out and described as risk-prone behaviours (ITU, 2010b: 16).
It is important to acknowledge that many children who are solicited online
by adults do not arrange to meet them. Social networking sites, chat and
IM platforms have tools to block and report unwanted contact. Recently,
Facebook created a social abuse reporting mechanism for individuals to alert
their friends about potential abusive or inappropriate activity. Ironically,
rather than demonise activities and behaviours as risk-prone, it should also
be remembered that it is through the norms of sharing and engagement that
a community of networked sociability can be leveraged to reinforce civility
and respect. The integration of civic responsibility and appropriate behav-
iour norms through design solutions in effect allocates to children some of
the responsibility for policing the networked community. In viewing all on-
line activities as risk-prone or risky it has been suggested that we may
attach little importance to the value of positive risk taking in promoting
good decision-making skills, developing resilience and enhancing childrens
ability to respond to online incidents in a safe and responsible manner. One
is also inclined to agree with Gill, when he suggests that curbing a childs
ability to take reasonable risks may be counterproductive and have the un-
intended effect of leading them to engage in more dangerous and unsuper-
vised activity (Gill, 2007: 1516). Second, the culture of reflexive governance
has also led to the institutionalisation of risk management. The State has an
obvious role in allaying public fears and concerns, as suggested by the former
Home Secretary David Blunkett:
The concerns raised by the Attorney Generals press release (noted at the start
of Chapter 1) could be regarded as addressing a condition, episode and
a group of persons which pose threats to childrens safety and well-being.
Online service providers, parents and educators, according to the definition
of a moral panic, would seem now to be the digital equivalent of bishops
and right-thinking individuals. The media reporting could also be seen
as one example of risks facing children being presented in a stylized and
stereotypical fashion (Ungar, 2001; Garland, 2008). The law enforcement
response in relation to the presence of online sexual predators and potential
threats for children is depicted as legitimating the elevation of safeguard-
ing children as a social and moral obligation on all adults and businesses
in society. The risk-based regulation model extends to corporate stakehold-
ers social networking sites and mobile phone providers now become the
focal points for allocating blame and responsibility (Critcher, 2008). The
mischaracterisation of the precautionary principle will only serve to deflect
from the truth and thus simply makes it more difficult to figure out what
we should do to effectively address the situation (Ohler, 2010: 144). The
European Commission was clear in its Communication that
Public anxiety and concerns leading to moral panics pose considerable prob-
lems for policymakers (Goode, et al., 1994). McAlinden regards the cycle
of moral panic as reconstructing social reality, resulting in perceived risks
being transformed into a discourse about a society full of sexual predators
(2007: 11). The process of constructing a social problem has a more im-
mediate relevance it leads to a cycle of, what Beck regards as, heightened
anxiety and public expectation that policymakers respond to the critical ten-
sions raised by childrens exposure to Web 2.0 technologies (Hawkins et al.,
1983). Taking the MySpace incident, which opened the discussion in the
book as an example, very little weight or importance was attached by the
Attorney General to the practical question of whether the online services
provider had taken appropriate and reasonable measures in enhancing the
safety of its products and services. Without MySpaces due diligence pro-
tocols, 90,000 registered sex offenders would not have been identified in
the first place. The Sentinel SAFE software, which is funded and developed
by MySpace, cross-references the information of its 130 million users with
the national database of known registered sex offenders. By focusing on
the uncertainty generated by the presence of the registered sex offenders,
risk management becomes inseparable from managing uncertainty conse-
quently, it seems that in the absence of absolute proof that uncertain risks
are eradicated, social networking sites are to be viewed as unsafe for chil-
dren (Ungar, 2001: 273). The press release also contributes to increased pre-
occupation with managing uncertainty, as it appears to imply the existence
of an ideal or appropriate risk management response. A recent illustration
of the uncertain boundaries between moral panics and legitimate risk man-
agement governance can be seen in the claim made by CEOP to have made
the online environment safer, following the adoption by social networking
sites and a number of online service providers and ISPs of the ClickCEOP
reporting button (CEOP, 2009: 15). Without overstating the obvious, if this
claim holds true, it is difficult to see why the same could not be said for the
efforts made by MySpace or Facebook in adopting the proactive measures
that they have. Accordingly, as risk is pervasive in society, and is accentu-
ated by networks and information flows
2.10). The findings from the Eurobarometer Survey, noted below, can be
used to illustrate Becks central ideas about living in the risk society, in par-
ticular for evolving parental cultures (Eurobarometer, 2008).
Risk anxiety is particularly noticeable in relation to online sexual solicita-
tion (60 per cent) and exposure to sexual and violent content (65 per cent),
but does not appear to be particularly high in relation to peer victimisation
(54 per cent) or exposure to age-inappropriate or harmful content (55 per
cent). Parents anxieties about children being sexually victimised or exposed
to sexually explicit content is not new it should also be noted that it is
not entirely clear whether the Internet accentuates these anxieties. Another
interesting finding relates to the number of parents who indicated that they
were not really worried about online sexual solicitation (36 per cent), ex-
posure to sexual and violent content (31 per cent) or exposure to age-inap-
propriate or harmful content (41 per cent). It seems that parental anxieties
were much higher in cases where they did not use the Internet themselves,
in contrast to those who did use the Internet (2008: 30). Additionally,
where low scores were highlighted, it is unclear from the survey whether
viewed very much through the lens of institutional and regulatory processes
for managing risks (Knaak, 2009). There is also a noticeable trend in the way
anxieties about managing risks also lead to greater intervention by industry
and government in creating a safer environment for children (ITU, 2008a,
2009d,e). Strategies to promote trust and confidence continue to be merged
with discourses on empowerment and responsible parenting. Parents are
not regarded as passive actors, as risk management become institutional-
ised; there is an expectation that they be seen to take an active part in the
daily online and offline lives of their children. These developments can at
a very abstract or theorised level be seen as impressing on adults in society
that a childs well-being and safety is best assured within an institutional
framework of defined rules on monitoring computer use and instilling risk-
averse behaviour (Hier, 2003). Networks and information flows have led
to a gradual weakening in parental authority and control over children
(Lamborn et al., 1993). In some cases, as Web 2.0 technologies accelerate the
de-traditionalisation of the social paradigm, parents now seek to bolster
their trust by turning to their own experiences, media accounts of threat
levels and assessments made by experts and institutions (Hier, 2003). For
example, ACMA, like many regional and national institutions, continues to
assist parents in discharging their ethical and social obligations by raising
their awareness of online safety issues (ACMA, 2010b: 1). This view of the
role of institutions in shaping parenting cultures can be regarded as another
example of living a risk society where
Conclusions
Overview
61
Preliminary observations
As many commentators have pointed out, the criminal law is one means
through which the State establishes rules and standards of conduct expected
from its citizens. The role of the State in defining the types of conduct and
harms where penal sanctions are justified has a public interest dimension
(Muncie, 2001). Becks works on living in the risk society also remind us
that criminal law is not immune to the way assumptions are made about
who, when and how legal and moral obligations are imposed on individuals.
Even self-help is seen as being consistent with the normative foundations of
the criminal law (Gardner, 1996: 11617). With regard to child protection,
however, there have long been tensions regarding the way the criminal law
targets particular harms, conduct and interests but leaves scope for indi-
viduals to assume responsibility for their own actions (Lacey, 2007: 251).
Whilst the criminal law has been unequivocal in its prohibition of serious
forms of commercial sexual exploitation, the evolution of this branch of
public law also illustrates that social and ethical conceptions of responsi-
bility, autonomy and risks continue to present courts and policymakers with
difficult choices regarding the boundaries of criminal responsibility and li-
ability. These tensions also lie at the core of child protection policymaking
emerging from technology-mediated harms (e.g. peer victimisation), identi-
fying strategies for regulating the broadcasting and online services industry
and assessing the role of the law in securing compliance with its standards
and rules. From a policy perspective, the legal standards provided by the
criminal law provide a principled framework through which the duties,
obligations and social norms for maintaining public order in society can be
identified. It does this by defining the types of prohibited conduct and the
penalties accompanying violations of its standards and obligations (Goold
et al., 2007). Ashworth identifies one of the central preoccupations of the
criminal law as being to prohibit behaviour that represents a serious wrong
against an individual or against some fundamental social value or institu-
tion (Ashworth, 2004: 1). These observations are also very much in line
with the standards and principles in the UNCRC, in particular Articles 19,
34 and 37. The criminal law is one instrument through which children can
be safeguarded from all forms of violence and exploitation (Articles 19 and
34) and inhuman or degrading treatment (Article 37). Securing compli-
ance with the law is made more complex when we recall that the traditional
model of law enforcement relies on there being a nexus between the crim-
inal act and the territorial space (Brenner, 2004). Crimes which are medi-
ated through technology tend to be categorised in any one of three ways:
Table 3.1 Relationship between childrens risk-prone activities and online child
safety incidents
the distinction between their risk-prone activities and risky activities (Table
3.1). The former is concerned with childrens engagement with technological
affordances that expose them to online incidents and risks, whilst the latter
is concerned with childrens risky behaviours as participants or perpetra-
tors (ITU, 2010b: 1620; Livingstone et al., 2009b). As an example, a recent
survey highlighted that teenagers (13- to 17-year-olds) posted personal in-
formation, or engaged in communications with strangers, assuming that
they were invulnerable (Cox Communications, 2010: 9). The Eurobarometer
2007 and EU Kids Online II 2011 surveys also illustrate the correspondence
between childrens online activities and their exposure to online safety
incidents and experiences (Eurobarometer, 2007; Livingstone et al., 2011).
It should, however, be borne in mind that such distinctions can be used to
characterise any activity undertaken by a child in both the offline and on-
line environments.
The court concluded that the accused could not be regarded as having com-
mitted a crime on the grounds of violating a websites terms of reference
alone; to do this it was observed by the court would have amounted to
Virtual worlds, social networking sites, mobile phones and chat rooms pro-
vide new avenues through which children can be exposed to individuals
seeking to exploit them for sexual activity (Jewkes, 2010). The public policy
concerns informing the enactment of laws criminalising online sexual ex-
ploitation and abuse of children can be gleaned from the observations made
in the following House of Representatives report:
the Penal Code (the Netherlands), Article 22724, of the Penal Code (France)
(Davidson et al., 2011). Countries like Singapore and New Zealand have also
amended their laws to reflect the threats posed to children by adults using
ICTs (e.g. Section 376E of Penal Code (Singapore), Section 131B of the Crimes
Amendment Act 2005 No. 41, Public Act). It is worth noting in passing that
signatories to the CPC Convention also undertake to enact necessary le-
gislative or other measures to criminalise solicitation of minors for sexual
purposes (Article 23).
Before looking at three specific legislative attempts which criminalise on-
line sexual solicitation, a brief account of attempts to construct the nature of
sexual grooming may be helpful in understanding their relevance for gov-
ernance strategies, particularly for the deterrent role of the criminal law.
Sexual grooming laws not only delineate the standards of behaviour
expected from individuals towards children but its provisions also iden-
tify the types of conduct, which if entered into will give rise to criminal
liability. This latter aspect is important, since the clearer the prohibited
conduct, the easier it is for law enforcement to investigate and prosecute an
offender of the relevant crime. Davidsons definition of sexual grooming
aims to capture the dynamics of the offending characteristics by describing
the criminal activity in terms of
Victims
Vulnerability
Authority Figure
Opportunity
Inclination
Victim Friendship
Selection Formation
Stage
Relationship
Sexual Stage Formation
Stage
Risk
Exclusivity Assessment
Stage Stage
Second, it does not always follow that the victim selection stage will
progress to a relationship formation or actual sexual stage. One reason
why that might happen is that the offender may have already obtained
his sexual gratification at this stage (Attorney Generals Reference (No. 28
of 2010) (2010)). Alternatively, it could also be that the offender may have
decided that the risks of detection outweigh the gratification derived or
the child may have taken steps to block all unwanted contact. Third, the
time lapse between each stage may vary depending on a number of varia-
bles motivations of the offender, opportunity and location of the victim
and offender. Consequently, we may have to accept the observation of the
Court of Appeal in PDA v R (2008) that grooming is not a term of art but
connotes something along the lines of steps taken by the offender to per-
suade, or prepare, or encourage, the object of sexual attention to partici-
pate in sexual activity (2008: paragraph 8). More generally, both offline
and online grooming of children are not linear socialisation processes
that come within a pre-determined time frame, and which can add to
the complications in detecting or investigating sexual grooming activity
(Mitchell et al., 2007c). Whilst the criminal law defines the substantive
UNCRC and the CPC Convention recommend that the threshold be raised
to 18 years of age, so that all children are provided with the maximum legal
protection possible.
Whilst adults and society may have a view about children communicating
with strangers, particularly in an online environment, the laws response is
more measured. When the question whether the criminal law is violated
is posed, the sexual grooming activity is formalised in the following man-
ner: is the individual an adult? Is B a child aged 16 years old or above? Have
there been at least two communications? Has A met B, arranged to meet B
or travels with the intention of meeting B, which if done would amount to
a sexual offence? Is there cause for A to have believed that B was 16 years
old? Such is the seriousness with which sexual grooming is viewed that an
individual convicted under the offence can face imprisonment of at least 10
years. Prosecutions for grooming have generally been successful, and many
of the cases heard on appeal are to do with sentencing, which is not the
focus in this chapter.
In cases where offenders have been convicted, prosecution have been able
to discharge their legal and evidentiary burdens: the existence of a series of
communications between the offender and the victim (i.e. email and text
messages), the offender knew that he was dealing with a minor, there was
incriminating evidence of an intention to commit a sexual act with the
child and the offender has either met the child or travels with the intention
of meeting the child with the object of engaging in sexual activity. In R v
Luis Cotilla (2009), the offender contacted an individual (Charlotte 12)
in a chat room entitled No Adults. He initiated contact with Charlotte
12 via an IM facility. The conversations initiated by the offender assumed
sexual overtones, during which time he expressed his intention to have
sex with Charlotte 12 and proceeded to describe the intended activity in
graphic detail. A meeting was subsequently arranged and the offender was
arrested when he turned up at the pre-arranged venue. In R v CB (2010), the
offender contacted one of the girls on the social networking site Facebook.
He sent her a message requesting her to become his friend. The girl added
his name to her site. The offenders profile indicated his date of birth as 14
December 1992. They communicated with each other via the IM facility on
Facebook and the conversations eventually turned to sexual matters. The
girl showed the offenders messages to her classmate and they both entered
into conversations with the offender on Facebook. The offender met with
the girls at a pre-arranged venue. No sexual activity was, however, engaged
in during this and at another pre-arranged meeting. These matters came to
light when the girl complained to her mother, who then alerted the police.
The offender was convicted under Section 15(1) of the SOA 2003. The fact
that no sexual activity occurred was held not to be a defence to convic-
tion under this section. The case of R v Mohammad (2006), even though
not strictly an online sexual grooming incident, serves to illustrate the
pre-emptive value of Section 15. The offender in this case was a security
guard on a building site. Local schoolgirls regularly hung around this site,
and it transpires that some of them approached the offender and engaged
him in conversations. During one of these meetings, the offender was intro-
duced to the complainant, aged 13. Both the offender and the complainant
developed a friendship and they subsequently exchanged telephone num-
bers. Over a three-month period, the relationship between the offender
and the complainant progressed to an intimate level. At the trial of the
offender, no evidence was produced of sexual activity having taken place
between the complainant and the offender. The offender was, nevertheless,
convicted for abduction and the offence of meeting with a child following
sexual grooming. Following an appeal on the sentence handed down by
the trial judge the Court found no reason to disagree with the decision that
the accused was guilty under Section 15 of the SOA 2003. It is particularly
interesting to note that the court held the intervention by law enforcement
to be timely as the girl (who was in foster care) was deemed to be vulnerable
to being socialised into accepting that sexual activity with the offender
as a natural part of their friendship (2006: paragraph 13). It should also
be made clear that even though the process of sexual grooming may not
be advanced sufficiently to warrant a Section 15 prosecution, it does not
preclude law enforcement from charging the individual with other sexual
offences against minors if appropriate. For example, a perpetrator could be
prosecuted for non-contact offences like causing a child to watch a sexual
act, inciting the child to engage in sexual activity or engaging in a sexual
activity in the presence of a child. R v H (2010) is an apt illustration of
the alternative charges that may be made against an offender suspected
of grooming a child for sexual activity. The perpetrator, in the course of
grooming a child, committed a series of sexual offences, namely, those of
engaging in sexually obscene behaviour, causing or initiating a child to
engage in sexual activity contrary to Section 10(1) of the SOA 2003 and
having indecent photos of a child contrary to Section 1(1) of the Protection
of Children Act (PCA) 1978. The defendants modus operandi was to wait in
a car parked close to a phone booth. When girls aged 12 to 15 passed by, he
rang the phone from his mobile. On occasions when the girls did answer
the phone, he engaged in conversations and obtained their mobile phone
numbers. He offered the girls payment and gifts when they responded to
his sexual requests.
The criminal law does not absolve an adult from adhering to its stand-
ards even when the suggestion to engage in sexual activity is initiated by
the child. A case that highlights the standards of behaviour expected from
adults is R v Walker (2007). The accused worked in a public library, and
entered into conversations with four girls at the venue. The girls were below
the age of 16 years. As their friendships developed, the girls initiated a meet-
ing with the accused at his flat. On one occasion at the flat, the accused was
invited to kiss one of the girls, and the invitation was accepted. The accused
then proceeded to kiss the other girls and as the evening progressed, the
parties engaged in several overt sexual activities. The accused was convicted
not only of meeting a child consequent to sexual grooming (Section 15 of
the SOA 2003), but also for the offences of causing or inciting a child to
engage in sexual activity (Section 10 of the SOA 2003); engaging in sexual
activity in the presence of a child (Section 11 of the SOA 2003) and sexual
activity with a child (Section 9 of the SOA 2003).
How does the online environment affect the standard setting role of the
criminal law, particularly where the interactions between the parties are
mediated through ICTs and affordances? This is a relevant question with
regard to the application of the law where the parties, as a general rule, do
not have face-to-face interactions. For example, an adult may pretend to be
a minor and register false details on a social networking site to gain access
to children within this age group. Some children may be unaware of these
risks or may themselves deliberately conceal their ages with the aim of mak-
ing contact with adults. R v Costi (2006) illustrates the protective role of
Section 15(1) of the SOA 2003 in the online context. The offender in this
case engaged in a conversation with a girl, aged 14, in an Internet chat room.
He told her that he was aged 20 years, and the complainant informed him
that she was aged 12. At the offenders request, the complainant exposed
herself on her webcam and masturbated herself. Following these activities,
the offender arranged to meet up with the girl and sent his photograph to
her. He did not turn up for the pre-arranged meeting. The girl informed
her mother, who in turn contacted the police. The offender was charged
and convicted on one count of causing or inciting a female child under
16 to engage in sexual activity (Section 10 of the SOA 2003) in addition to
Section 15(1) of the SOA 2003. Clearly, the interactions, the extent of the
non-contact sexual activity and the plan to meet the child at a pre-arranged
venue were deemed to be sufficient for the court to hold that the grooming
offence had been committed. Some may argue that the offence is not widely
constructed, and consequently recourse should be had to Sections 14 or 62
of the SOA 2003. Section 14 of the SOA 2003 provides that a person is guilty
of the offence of arranging or facilitating the commission of a child sex
offence, but only if two conditions are met:
In addition to Section 14, Section 62 of the SOA 2003 provides that an of-
fender can be prosecuted if he does an act which is regarded as being more
than merely preparatory to the commission of the offences under Part 1 of
the legislation (Section 1 of the Criminal Attempts Act 1981 and R v Jones
(2007)). On this line of reasoning, an appropriate charge of attempting to
commit a Section 15 offence could be considered if the accused had commu-
nicated to the child details of the meeting place (Shivpuri). Two points should
be noted by way of response to these claims. First, Section 15 of the SOA 2003
creates an inchoate offence and permits intervention even in cases where the
accused does not carry out the intention to arrange or facilitate the carry-
ing out of relevant child sex offences. Should an individual terminate the
relationship at step 3 (i.e. OConnells cycle of victimisation) it appears that
Section 15 of the SOA 2003 would have fulfilled its deterrent role. Second,
Section 62 of the SOA 2003 may appear to be an attractive proposition, until
we recognise that the early intervention permitted by Section 15 is concerned
with attempts to engage in some form of sexual activity with a child. To sug-
gest otherwise would be tantamount to holding that one can be prosecuted
for attempting to commit an inchoate offence whatever that might entail.
A more immediate and relevant concern is whether the absence of knowledge
that the accused knew he was interacting with a minor is relevant for the
purposes of the legislation. It is an issue that has been addressed by courts in
a number of jurisdictions. As a general rule, in the offline world there is no
real difficulty in determining the circumstances when an adult should be put
on notice wilful blindness is not a basis for running the defence of reason-
able belief that the child was 16 years old or above. The question of whether
the offender entertained a reasonable belief that a child was 16 years of age
or older is a question of fact and is a matter for the jury. Some indication as
to how such online interactions can be brought within the ambit of the SOA
2003 can be inferred from the Attorney Generals Reference (No. 29 of 2008)
R v D (2008). The complainant met the offender (aged 19) in an Internet chat
room. The complainant stated her age on her chat room profile as 20, even
though she was only aged 11. The offender believed the complainant to be 20
years old. As their online relationship progressed, sexually explicit messages
were exchanged, and at the request of the offender, the complainant sent
him a nude photograph of herself. Some time later, the complainant revealed
her true age to the offender. Despite the disclosure of this fact, the offender
continued to communicate with the minor. They subsequently met but did
not engage in penetrative sex. The complainant later informed her parents
about the offender, and the police were subsequently alerted. The offender
was arrested and charged with various offences under the SOA 2003. The
court accepted evidence showing that the complainant was complicit in the
online interactions and meetings. The court, however, held that an adult was
put on notice of potential criminal liability as soon as he was made aware that
the individual he was dealing with was a minor:
The basic problem in this case is that the law exists, not only to protect
children from the baleful, damaging influence of adults with a sexual
interest in children, but also because the law acknowledges the reality
that some children, even children as young as 11 years of age, need pro-
tection from themselves. (2008: paragraph 35)
Todd Myers: So I can come down like next Tuesday if you wanna see me
Kim Wilson: k
Kim Wilson: What time?
Todd Myers: Well is there anyway you can be home alone all day?
Kim Wilson: I can skip [school] if your 4 real
Todd Myers: Yes I am
Todd Myers: Will u be home all day alone?
Kim Wilson: Can be
claimed that at all times he knew that the person he was chatting with in
the chat room was not a minor. The Court had to address two issues at the
trial entrapment and the offence of knowingly enticing a minor for sexual
activity. We will focus on the latter issue for the purposes of the present
discussion. The Court held that from a review of the chat logs there was
very little suggestion that the offender was disinclined to engage in sexual
activity with a minor had the opportunity presented itself. Particular refer-
ence was made to the fact that the offender met Stephanie in a romance chat
room, that he was aware a minor was involved and that he was disposed
to engaging in sexually explicit conversations. Notwithstanding that the
second chat conversation was with an individual using the pseudonym
Kim, rather than stephanieboyd1994 the offender was found to have initi-
ated the discussions about engaging in sexual activity and was the person
who initiated the discussion regarding a face-to-face meeting, despite being
informed that Kim was a minor. When viewed together with a four-minute
video sent to Kim, of himself engaging in acts of sexual self-gratification,
the Court concluded that a reasonable jury would have found that there was
an attempt to entice a minor to engage in sexual activity.
real child below the legal age of consent to engage in or submit to sexual
activity. He suggested that the imposition of these substantive requirements
on prosecution would undermine Parliaments intention to protect chil-
dren from sexual exploitation through the Internet and other mediums of
communication (paragraph 53).
that the person was represented to the adult as being under the age of 16
years, or 12 years, as the case may be, is, in the absence of evidence to the
contrary, proof that the adult believed the person was under that age.
It is critical, however, for the offence under Section 218A(1) that prosecu-
tion discharges its legal and evidentiary burdens with regard to the age of
the person. It is not open to a judge to direct a jury on the basis of the re-
buttable presumption under Section 218A(8), thereby absolving prosecution
from establishing that the offender intended to procure a person whom he
believed to be below 16 years of age. This point was further elaborated by
the Supreme Court of Queensland in R v Shetty when it stated that s 218A(8)
does not alter the position that the jury must be satisfied that the accused
had the belief essential to establish a contravention of s 218A(1) (2005:
paragraph 26).
or taking part in, an act of a sexual nature. The rationale for criminalis-
ing this type of conduct, as observed previously, is aimed at assisting law
enforcement in preventing the child from being groomed for actual abuse
or exploitation. Unlike Section 15 of the SOA 2003 this provision does not
stipulate the number of communications that should have been entered
into before the criminal law intervenes. Additionally, the use of the word
suggest appears to provide law enforcement with the flexibility in draw-
ing on a range of communications, which extend the scope of the conduct
prohibited by the criminal law. Liability can arise as soon as the prohibited
communication is made to a minor below the age of 16 years. The con-
sent of the minor to the suggestion or the agreement to receiving the ma-
terial either directly or by accessing from a separate source is not a defence
(Section 66(4)).
In New South Wales, for example, Section 66EB creates offences of pro-
curing and grooming a child for unlawful sexual activity. Grooming
is deemed to take place as soon as an adult engages in any conduct that
exposes a child to indecent material or provides a child with an intoxi-
cating substance, and (b) who does so with the intention of making it easier
to procure the child for unlawful sexual activity with that or any other
person (Section 66EB(3)). In R v Asplund, Kenneth (2010), the offender used
an Internet chat room to initiate a sexual encounter with a 14-year-old girl
whose online profile was Aussie Girl. The District Court held that the
graphic sexual conversations and the exchange of indecent material (both
suggestive and explicit) through mobile phone and SMS/multimedia was
evidence of his fantasies of sexual activity with Aussie Girl, morphed into
an intention to have sexual intercourse with her in one or more of the forms
that that term is used in the Crimes Act 1900 (paragraph 12).
reference to the standards of ordinary people. The section also applies where
the child engages in sexual activity with other persons as a consequence of
the encounter with the offender. In relation to both offences under the sec-
tion, there is a general defence available to the offender; to avoid a criminal
prosecution, the offender must offer evidence showing that the presence
of the child was inadvertent and that there was no intention to derive
gratification from the presence of the child during that activity (Section
474.25A (4)). The offender can avoid the charge if he shows that he believed
that the child was not under the age of 16 years. The offence of grooming
seems to be worded in a way that makes prosecution relatively easier. The
Explanatory Memorandum, for example, states that Sections 474.269 aim
to deal with preparatory steps undertaken by adults to exploit children for
their sexual gratification (Table 3.4).
Before 2007, there were 130 prosecutions for online procuring, grooming and
exposure offences in Australia.
Indeed, the Court of Appeal seems to regard the relationship, risk assess-
ment and sexual stages as indivisible. Following an appeal by the accused,
the Supreme Court of Canada agreed with the decision by the Alberta Court
of Appeal (R v Legare (2009)). The unanimous view of the Supreme Court was
that the communications between the offender and the victim came within
the conduct prohibited by Section 172.1(1)(c) since
The case of R v RJS (2010) offers an illustration of the courts response when
faced with arguments that the accused was merely engaging in role play or
that the person was an adult, not a minor. The latter is an argument often
raised by an accused when charged following a sting operation, which was
the case here. The accused engaged in sexual conversations with a police of-
ficer who assumed the fictional identity of a 13-year-old child. The observa-
tions of the Court make clear the respective legal and evidentiary burdens
assumed by the prosecution and defence:
If I believe the evidence of the accused that he did not believe he was online
with a minor having these sexually explicit conversations that included an
invitation to touching, I must acquit the accused. That is not the case. I do
not accept the evidence of the accused. (2010: paragraph 58)
It is always open for the defence to suggest reasonable belief or, as is the case
here, that the accused did not believe that he was dealing with a child. It is,
however, a question of fact, whether in the light of the evidence presented
that this is an inference which can be legitimately drawn. The approach
adopted in Legare and RJS illustrates the courts awareness of the way adults
use online communication to express their sexual preferences and even re-
enact their fantasies. However, in both these cases, the courts also seem to
be indicating that adults need to demonstrate that additional steps have
been taken to verify that they were not interacting with minors. The im-
position of these legal obligations correspond with the recognition that the
criminal law has as one of its goals the protection of
not correspond, for example, with the models of sexual grooming activity;
the latter gives weight to both context and motive as being an integral aspect
of assessing the criminality of the communications between the offender
and the object of his sexual gratification. Surely, the process of reducing
the childs inhibitions to sexual activity does not necessarily have to begin
with explicit descriptions of sexual acts or images of pornographic activity.
We can, for example, imagine an instance where an online sexual predator
engages in innocuous communications with a child based on information
uploaded on the social network account.
Search engines, IM, emails, social networking sites and mobile phones now
provide children with potentially unrestricted access to adult pornography,
age-inappropriate content like violent online games and literature. Access
to illegal or harmful content is regarded as accelerating the sexualisation
of children (Papadopoulos, 2010). Premature sexualisation is felt to in-
crease childrens susceptibility to self-victimisation (e.g. sexting) or increase
childrens exposure to violence (or pressure to conform with sexual stere-
otypes), sexual grooming and have long-term developmental and psycho-
logical consequences (Sacco, 2010). The ready availability of all forms of
sexual and age-inappropriate content can also desensitise children to the
harmful aspects of such material and create addictive behaviours (Quayle,
2010, 2011). Bryant suggests that increased exposure can also lead to shaping
and transforming childrens attitudes towards sexual activity, intimacy and
sexual violence in society (Bryant, 2009: 38). Policymakers are also rightly
concerned that children are now using Web 2.0 technologies to manipulate
adult pornographic images to victimise peers, or using these tools to engage
in invasions of privacy or to distribute images taken in locker rooms and
other venues without regard to the privacy or sensitivities of these indi-
viduals (Powell, 2009). In 2009 the software security provider Symantec
reported that the words sex and porn were the most searched words
by minors, particularly amongst younger children (Norton Online Family,
2009). Content which is deemed to be inappropriate or potentially harmful
to children is regulated by the ICT industry or broadcasting and entertain-
ment industries. In the United Kingdom, such issues are addressed by bodies
like the OfCom Content Board (Section 12(1) of the Communications Act
2003), the Independent Mobile Classification Body, the British Broadcasting
Corporation (BBC), the British Board of Film Classification (BBFC) and the
Authority for Television on Demand. Criminal sanctions are applicable to
illegal content like child abuse images, adult content that violates the ob-
scenity laws, racist materials and terrorism content (R v Sheppard and Whittle
(2010) and racially inflammatory content posted online. The Internet
Watch Foundation (IWF) 2010 report also found that child abuse images
were depicting children of very young ages and the violence increasing in
severity (IWF, 2010b).
There are a number of rationales informing the role of the criminal law in
this area of child protection. These include the need to protect children from
being exploited by those engaged in the Commercial Sexual Exploitation of
Children (CSEC) industry, the adverse effects on children from inadvertent
exposure and the threats posed to children by the creation and distribution
of child abuse content. It is, however, unclear whether there is a relation-
ship between possession of child pornography and actual abuse of children
(Quayle, 2010). In R v Sharpe (2001) the Court held that
Article 20(2) For the purpose of the present article, the term child pornography
shall mean any material that visually depicts a child engaged in real or simulated
sexually explicit conduct or any depiction of a childs sexual organs for primarily
sexual purposes.
Cybercrime Convention
Article 9(2) For the purpose of paragraph 1 above, the term child pornography
shall include pornographic material that visually depicts:
a. a minor engaged in sexually explicit conduct;
b. a person appearing to be a minor engaged in sexually explicit conduct;
c. realistic images representing a minor engaged in sexually explicit conduct.
Optional Protocol to the CRC on the sale of children, child prostitution and
child pornography
The accused was convicted and appealed. Stocker LJ cited with approval the
decision of the Court in R v Stamford (John David) (1972) when ruling that
the trial judges admission of extrinsic evidence was erroneous. The Court
of Appeal stated that the question whether the photograph was indecent
had to be determined objectively, and could not include a consideration of
whether right-thinking people would regard as indecent, the motivation
the words to make must be given their natural and ordinary mean-
ing. In this context this is to cause to exist; to produce by action, to
bring about (Oxford English Dictionary). As a matter of construction
such a meaning applies not only to original photographs but, by virtue
of Section 7, also to negatives, copies of photographs and data stored on
computer disk. (2000: 444)
This approach can be justified on the grounds that the criminal law aims
to enforce its child protection goals by seeking to deter individuals from
fuelling the market for supply and consumption of indecent photographs
of children or printing them. Additionally, the opening of an attachment
in an email containing a childs photograph would be construed as mak-
ing for the purposes of the Act (R v Smith, R v Jayson (2002)). In the joined
appeals of R v Smith and R v Jayson (2000) the Court of Appeal elaborated on
the scope of the offence of making an indecent image of a child. In this
case, evidence was produced showing that the accused browsed a number
of child pornography websites, and in the process downloaded images from
the browser, which enabled these to be viewed on the computer screen. The
Court of Appeal held that a deliberate act of accessing content constituted
a making of these images (2000: paragraph 33). The issue of what consti-
tutes possession in respect of materials downloaded from websites and
stored on a computer may raise doubts as to the scope of the type of con-
duct, which can be sanctioned by the law. When determining whether an
individual can be held liable for being in possession of illegal child abuse
material, the law requires prosecution to prove that the accused was in con-
trol or in custody of the relevant content (R v Porter (2006)). It is not open
to a court, however, to invite a jury to draw an adverse inference by the
mere fact that the accused was in possession of a computer which con-
tained the prohibited image (R v James McNamara (1988)). Evidence must be
produced, for example, which shows that the accused was aware of the ex-
istence of the illegal images on his computer (Atkins v DPP, Goodland v DPP
(2000)). As the Court of Appeal (Criminal Division) stated in R v Ping Chen
Cheung (2009), it is incumbent on prosecution to show not only the fact
that the accused was in physical possession or control of the computer
which had the offending item but that he had knowledge of the existence
of the indecent images of children on the machine. The question of what
constitutes relevant culpable knowledge was considered in Atkins v DPP
(2000), where the accused was charged, amongst others, with the offence of
being in possession of child pornography. The accused had saved in-
decent child abuse images from sites that he had visited onto a directory in
his computer. The computer programme automatically saved images from
other websites the accused had visited in the temporary Internet cache. An
important feature of online browsing is that the browser automatically
stores the information in a temporary cache of recently viewed documents.
When an individual wishes to revisit the site, the browser accesses the in-
formation in the temporary cache to speed up the connection to the web-
site. This document folder is only emptied when it becomes full. The
accused was charged for possession of these contents under the PCA 1978.
Law enforcement retrieved the illegal content through a forensic process
and submitted these as incriminating evidence. One question addressed by
the High Court on an appeal was whether the images retrieved through the
forensic process could be regarded as evidence of the accused being in pos-
session of indecent images of children. The defence argued that to hold the
accused liable for possession would be tantamount to regarding constructive
notice of the functioning of the computers temporary Internet cache (i.e.
automatically storing the indecent images from the websites he visited) as
being sufficient to ground criminal liability. Consequently, it was suggested
that without direct knowledge, the accused should not be found liable for
possessing indecent child abuse images at the time of the charge. The High
Court appears to have accepted this argument the offence of possession
cannot be committed if an accused has no knowledge of the temporary
cache storing these images. It seems from this ruling that visiting websites
which contain child abuse images would not be sufficient for a charge of
possession under the Act. If the lack of awareness regarding the availability
of the images being accessed from the temporary folder could prove
decisive, the same could not be said, however, with regard to being in pos-
session of child sexual abuse material received as an attachment via email.
In R v Smith and R v Jayson (2002), the first accuseds inbox contained an
email with attachments containing indecent photographs of children. The
accused argued that the email containing the attachment was unsolicited
and that his viewing of the contents was inadvertent. Prosecution disputed
this claim and offered supporting circumstantial evidence disclosing an
email exchange between the first accused and an unidentified email cor-
respondent where indecent images were being solicited. The court held that
the first accused was correctly charged and convicted under the offence of
making an indecent image of a child, contrary to Section 1(1)(a) of the 1978
Act, or being in possession of the indecent image contrary to Section 160(1)
of the 1988 Act, as he was deemed to have known the likely content in the
attachment to the email (2002: paragraph 20). R v Harrison (2007) raises an
interesting issue relating to the circumstances when an accused can be held
to be in possession of indecent images of children. The accused was con-
victed of possessing indecent photographs of a child below the age of 16.
The appellant admitted that he visited pornographic websites and was
aware that these sites contained pop ups of illegal images. He, however,
claimed that he was not aware that the images from the pop ups would
be stored on his computers hard drive. The Court of Appeal did not accept
this line of argument nor the evidence adduced in support his claim.
Interestingly, it seems that the offence of possession will be committed if
evidence is offered, which shows that the accused knew about the auto-
matic pop up activity when accessing the pornographic website and was
aware that by accessing these sites there was a likelihood that these images
would be stored on the computer. One final issue remains to be considered:
can an accused be convicted for possession of indecent child abuse content
stored in the recycle bin, when these are deleted prior to being charged
under the PCA? One view is that the deletion of the files prevents the
accused from being able to access the content and therefore should not be
found guilty for being in possession of the indecent images of children. A
competing argument offered is that the deletion of the files should not
make a significant difference to a successful prosecution if the illegal con-
tent can still be accessed from the hard drive albeit by someone using
sophisticated retrieving technology. These arguments formed the basis of
the issues addressed in R v Porter (2006). The accused was charged with a
number of counts of possessing indecent images of children, and, rather
curiously, with possession of material that had been deleted on the day the
computer was seized by law enforcement. The Court of Appeals ruling sug-
gests that such issues can be addressed by providing answers to three ques-
tions. The first question that has to be determined is whether the accused
has physical possession in the sense of having custody and control over the
contents. Second, if the answer to this question is that he has no control,
because these have been deleted and emptied from the recycle bin, the
accused will not be regarded as being in possession of illegal content. Third,
if, the content is within his control, and he can reproduce these images on
his screen, reproduce a copy or distribute the content that will be regarded
as evidence of possession. The question whether the accused is deemed to
be in possession of illegal content is a question of fact and ultimately one
which the jury is competent to determine. When addressing this matter, it
is open to a jury to take into account all these factors including the specific
knowledge and expertise of the accused. It should be noted that it is incum-
bent on prosecution to discharge its legal and evidentiary burdens. In R v
Rowe (2008) the Court of Appeal overturned the conviction of an accused
for being in possession of deleted indecent images of children from his
computer. The police seized 20 floppy discs from the appellants bedroom.
Eight of these discs contained a large number of deleted files containing
such images. The other discs contained movie files and child abuse images.
Files deleted from a floppy disc continue to occupy the storage space until
they are replaced by subsequent use. The accused argued that the prosecu-
tion had failed to discharge its evidentiary burden of proving that he know-
ingly possessed deleted indecent images of a child contrary to Section
160(1) of the CJA 1988. The Court of Appeal held that for an accused to be
liable for possession of these images, knowledge or even the lack of it was
relevant to criminal liability under the legislation. As these issues and their
significance to the question of knowledge were not brought to the atten-
tion of the jury, the earlier convictions for these offences were quashed. In
R v Collier (2004) it was made clear that on a charge for possessing an in-
decent photograph of a child, contrary to Section 160 of the CJA 1988, an
accused should not be prevented from putting before the jury his defence
that he had not seen the indecent photograph of a child, nor had he any
reason to suspect that the content was an indecent photograph of a child.
These cases illustrate judicial awareness of the process by which indecent
images, sound and text can now be created, accessed and possessed via Web
2.0 technologies. We should, however, note by way of conclusion to this
part of the analysis the three defences to charges brought under Section
160(1). Where a person is charged with the offence of possession, it shall be
a defence for him to prove (Section 160(2)):
(a) that he had a legitimate reason for having the photograph [or pseudo-
photograph] in his possession; or
(b) that he had not himself seen the photograph [or pseudo-photograph]
and did not know, nor had any cause to suspect, it to be indecent; or
(c) that the photograph [or pseudo-photograph] was sent to him without
any prior request made by him or on his behalf and that he did not keep
it for an unreasonable time.
For example, the legitimate reason defence could be relied upon in a case
where a police officer responsible for the investigation of child pornography
is required as part of the evidence gathering process to assume possession
of the illegal photograph or pseudo-photograph. This defence may also ex-
tend to organisations like the IWF, which may, in the process of managing
and operating hotline services combating the creation and distribution of
images of child abuse, come into possession of such content.1 It is, however,
not open to an individual to access or download illegal child abuse images
on the grounds of pursuing general research. In Atkins v DPP (2000), Simon
Brown LJ stated that what constitutes a legitimate reason is ultimately a
question of fact depending on the legitimacy of the research and
Tracings
The first development concerns the application of the 1978 Act to tracings
or drawings. It will have been noted that the focus of the 1978 Act has long
been on photographs. Section 69 of the Criminal Justice and Immigration
Act 2008 now extends the definition of photographs to include a tracing or
other image, whether made by electronic or other means. The tracing must
be one which is derived from the whole or part of a photograph or pseudo-
photograph (or a combination of either or both). Data stored on a computer
disc or by other electronic means which is capable of being converted into a
tracing is also covered. Software tools now enable individuals to create and
manipulate high-resolution and three-dimensional drawings of fictitious or
virtual images of pre-pubescent girls and boys. The most common type of
activity that leads to the offence being committed is one where an individual
traces an outline of a photograph onto a tracing paper, and the tracing is then
transferred onto a real piece of paper, with the drawing being coloured. There
has been some uncertainty regarding the issue of whether tracing and its
derivatives which also involved the creation of morphed images comprising
and
This section creates a discrete offence from those prohibited images and
content already covered by the OPA and the PCA 1978. Section 65(2), which
is the definitional provision, states that an image includes
For the purposes of Section 62 an image does not include an indecent photo-
graph, or indecent pseudo-photograph, of a child. References to an image
of a person and an image of a child include references to an image of an
imaginary person and imaginary child, respectively.
Extreme pornography
The Criminal Justice and Immigration Act 2008 makes two important
inroads into the growing use of the Internet to disseminate extreme forms
of pornography (Murray, 2009). First, Section 63 identifies specific types of
a. image is pornographic;
b. image is grossly offensive, disgusting, or otherwise of an obscene char-
acter; and
c. image portrays in an explicit and realistic way, at least one of a number
of acts (e.g. depictions of hanging, suffocation, mutilation of breasts or
genitals or an act involving sexual interference with a human corpse).
Some prosecutions have been already been made under this Act. In R v Derek
Arnold Wakeling (2010) the accused was convicted for being in possession of
extreme pornography, which included material involving bestiality within
Levels 4 and 5 of the Oliver guidelines. In R v Thomas John C (2010) the
accused was prosecuted for possessing extreme pornography. The materials
found in his possession included movies involving adults, horses and dogs
engaging in various forms of sexual activity. In the Australian case of R v
Gent (2005) an accused was convicted under its child pornography legis-
lation for importing material which included children being subjected to
sadomasochistic penetration. This form of child abuse content would also
be covered by this new piece of legislation.
From a sentencing perspective, the Court of Appeal in R v Oliver and Others
(2002) expressed the view that it was desirable to indicate whether the pho-
tographs downloaded by the offender were photographs or pseudo-photos.
Possession and downloading of computer-generated pseudo-photographs
and the making of such images are regarded as being of a lower level of ser-
iousness than, for example, those cases involving the possession or making
of photographic images of real children. The range of indecent images of
children circulating on the Internet undoubtedly create legal and practical
difficulties in assessing whether the criminal law is violated. The Combating
Paedophile Information Networks in Europe (COPINE) project developed a
classification system which helps rate the various types of child pornography
content. The COPINE Scale has ten levels, with each level depicting images
of child in varying degrees of sexuality. The premise in the taxonomy rating
system is that differentiating child pornography from other forms of sexual-
ised images of the child cannot be understood through legal definitions or
judicial deliberations. When reviewing the images of child abuse material
under the COPINE project, the team of researchers attempted to understand
the nature of such content, the motivations leading to their creation, col-
lection and distribution by individuals. To put it another way, the COPINE
project team concentrated on the particular sexual characteristics and fea-
tures that made them attractive to adults with a sexual interest in children.
There is general acceptance that an understanding of the psychological fac-
tors leading to the consumption of particular forms of child abuse content
over others can assist regulatory and therapeutic strategies (Lanning, 1992;
Kincaid, 1998; McCabe, 2000). Consequently, the COPINE Scale aims to
bridge the content with the particular needs and expectations of adults who
collect the material (Quayle, 2010: 3548). As Taylor, Holland and Quayle
note, an overemphasis on legal categorisations tends to deflect attention
away from a more discriminating analysis of the photographs themselves,
and the relationship between the child, the photographer, the photograph
and the user (2001: 97; Table 3.6).
This typology has not been fully accommodated by the legal system. This
is understandable, given the premise informing the COPINE rating scale.
When classifying pornographic material, prosecution use the Oliver scale,
from R v Oliver and Others (2002). The five-point classification is derived
from the proposals made by the Sentencing Advisory Panel, which now
advises the Sentencing Guidelines Council. According to the guidelines, for
example, an accused involved in the making of or trading or distributing
of material at Levels 1 to 3 will attract a two-year custodial sentence, with
sentence ranging from one to four years (Table 3.7).
The Oliver scale was developed to reduce any potential legal uncertainties
or disputes regarding the images that would now be the subject criminal
law sanctions.
Other jurisdictions
We may briefly consider some of the case law and prosecutions in other
jurisdictions, which also highlight the similarity of the policy responses
and the standard setting function of their criminal laws.
United States
The approach to regulating content deemed to be illegal or harmful is com-
plicated by the fact that the First Amendment regards free speech as the
Justice Burger set out some basic guidelines for the trier of fact, when deter-
mining the standard of review:
With regard to child pornography, the relevant Federal Law brings within
its scope all visual depictions of a minor engaging in sexually explicit con-
duct (18 USC 2256 (2008)). These depictions include all forms of media
used to represent the prohibited image (e.g. photograph, video, computer-
generated image or picture). Obscene visual representations of the sexual
abuse of children do not obtain First Amendment protections. In Roth v
United States (1957) it was held that the free flow of information, which is
based on the liberal ideal of promoting exchange of ideas and individual
autonomy, could be circumscribed where the material was found to be ob-
scene, lewd, lascivious or filthy. That said, the three guidelines provided in
Miller v California (1973) also make clear that appropriately drafted content
regulation would not infringe the free speech rights of its citizens. For ex-
ample, following the decision of the Supreme Court in the United States in
New York v Ferber (1982) it was observed that the law criminalising porno-
graphic depictions of real children below the age of 16 did not contravene
the First Amendment speech protections guaranteed by the Constitution.
Australia
There have been a number of legislative enactments in Australia and deci-
sions reached by the courts in the States/Territories. At the Commonwealth
level, content regulation is overseen, for example, by classification restric-
tions and child pornography legislation (Griffiths et al., 2007: 314). ACMA
administers the rules and laws relating to radio, television and Internet con-
tent. The Broadcasting Services Act 1992, for example, sets out the licence
conditions for the broadcasting industry. A series of mandatory programme
standards for children (Childrens Television Standards 2009, Broadcasting
Services (Australian Content) Standard 2005) and industry codes of prac-
tice ensure that age-appropriate content are clearly designated as such. In
2007, ACMA formulated a set of age-restricted content rules (commercial
MA15+ content and R18+ content) either hosted in Australia or provided
from Australia (Lindsay et al., 2008). These rules are set out in the Restricted
Access System Declaration of 2007. The rules apply to content service pro-
viders who make their content available via a carriage service (i.e. Internet,
mobile phones and SMS services).
With regard to child pornography legislation, the issues faced by poli-
cymakers and law enforcement mirror many of those we have already dis-
cussed. Possession, distribution and creation of child pornography content
are activities that give rise to criminal prosecutions. Additionally, the legis-
lation also addresses evolving forms of child abuse material and consump-
tion practices that are facilitated by the Internet. As with the rulings and
enactments we have considered above, issues regarding the definition of
the child and the substantive elements of the offence of engaging in child
pornography are equally pertinent to the matters addressed in Australia.
There are some issues worth highlighting. Given the number of jurisdic-
tions in Australia, the definition of a child for the purposes of child porn-
ography legislation varies. New South Wales, Queensland, South Australia
and Western Australia regard 16 years as the age threshold. The Australian
child pornography content under Section 91H(3) of the Crimes Act 1900.
The issue before the court was whether access to child abuse content via a
hyperlink, as opposed to such images being saved on the computer, could be
deemed to be possession. The court held that the intentional act of access-
ing websites containing child pornography was an act of possession within
the meaning of s 91H(3) if they happen to be displayed, although it might
be fleeting (2008: paragraph 7).
The test for determining whether the material is a form of child abuse
material is that of the community standard, namely:
Finally, Section 62 (of the Criminal Law Consolidation Act 1935) includes
another set of materials within the scope of child pornography:
(a) that
(i) describes or depicts a child engaging in sexual activity; or
(ii) consists of, or contains, the image of a child or bodily parts of a
child (or what appears to be the image of a child or bodily parts of a
child) or in the production of which a child has been or appears to
have been involved; and
(b) that is intended or apparently intended
(i) to excite or gratify sexual interest; or
(ii) to excite or gratify a sadistic or other perverted interest in violence
or cruelty.
The court held that fictional drawings of persons could be regarded as child
pornography, even though they were not realistic representations of human
beings. It was sufficient, in the courts view, that the fictional representa-
tion was that of a human being and was recognised as such. The fact that
no specific human being was depicted, it would seem to follow from this
reasoning, may not be relied upon as a defence to prosecution for child
pornography. This approach obviously stands in marked contrast to the ob-
servation in Ashcroft v Free Speech Coalition:
Canada
The position in Canada with regard to prosecuting individuals for mak-
ing, possessing and distributing illegal child abuse images is not dissimilar
to the regulatory responses we have already discussed. The leading case of
R v Sharpe (2001) characterised the juridical question facing the Supreme
Court as one of whether criminalisation of the possession of child porn-
ography was consistent with the constitutional right of Canadians to free
expression. In framing the subject of child pornography in these terms, the
court attempted to address, at least, the then perception of a conflict be-
tween the rights to free expression and the right of children to be protected
from harm. The accused was charged with one count of illegal possession
under Section 163.1(4) of the Criminal Code, RSC 1985, c. C-46, and an-
other count of possession for the purposes of distribution or sale under s.
163.1(3) of the Criminal Code. In the lower court, Mr Justice Shaw ruled
By setting out the public interest issues at stake both for and against the
prohibition of child abuse content, the Supreme Court was at pains to avoid
the overreaching of child pornography legislation into those private spheres
where individuals may keep a diary recounting their sexual fantasies and
encounters (ibid., paragraph 59). This ruling reflects, as in the United States,
the continued tensions between free speech and child protection laws
(McGlynn et al., 2009b). It also indicates that civil libertarian claims of the
provenance of free speech should not be overstated and instead should take
into account the concerns of the criminal law in addressing five harms to
children resulting from possession of child pornography:
ment efforts to reduce the production, distribution and use that result in
direct harm to children; (4) it is used for grooming and seducing victims;
and (5) some child pornography is produced using real children. (Ibid.:
paragraph 86)
It is perhaps fair to say that since the ruling in R v Sharpe (2001), the legal
basis upon which individuals are made liable for possession of child porn-
ography appear to be reasonably well settled (R v LM (2008); R v Morelli
(2010)). There are some refinements which should be noted by way of com-
pleteness. For example, in R v RD (2010) the Court of Appeal for British
Columbia stated that the law regarding possession of child pornography
did not apply to images viewed on the computer screen. It concluded that
if an accused was to be found liable for accessing child pornography con-
tent, something more than the fact of it being saved automatically by the
computer onto its hard drive was required (paragraphs 328). Canadas
Criminal Code contains a series of provisions criminalising the creation,
publication, transmission, possession, and accessing of child abuse content
(Section 163.1 of the Criminal Code). Canadas Bill C-2, an Act to amend
the Criminal Code (protection of children and other vulnerable persons),
and the Canada Evidence Act reflect the Governments continuing commit-
ment towards strengthening the protection of children from violence and
sexual abuse. The Government established a National Strategy to Protection
from Sexual Exploitation on the Internet. The National Child Exploitation
Coordination Centre (NCECC), which is part of the Canadian Police Centre
for Missing and Exploited Children (CPCMEC), is the law enforcement arm
of the National Strategy. The Centre was set up in response to growing par-
ental and public concerns raised by childrens access to and use of Web 2.0
technologies. Bill C-2 is one governance response to enhancing the safety
of children in the online environment. The preamble notes that this enact-
ment reflects Canadas commitment to the standards and principles under
the UNCRC, and in particular its obligation to protect children from all
forms of sexual exploitation and sexual abuse, following its ratification of
the Optional Protocol. Bill C-2 also resolves some of the issues raised by
Sharpe (2001), namely, the types of material that can now be characterised
as child pornography (s163.1); these can now include
while the committee acknowledges that the practice [of sexting] may be
undesirable, it agrees with arguments that young people engaged in such
behaviour should not be exposed to the grave consequences and stigma
that attach to allegations of, and convictions for, child sexual offences.
(paragraph 3.55)
This is true but it may, however, be recalled that in New York v Ferber (1982)
the Supreme Court was at pains to stress the compelling reasons justi-
fying the restriction on First Amendment rights, namely, the safeguard-
ing of the physical, psychological and emotional well-being of the child.
Sexting could be seen as being intrinsically related to the sexual abuse
of children in the sense of perpetuating a culture of self-victimisation
and commodification of children as objects of sexual interest (458 US 747,
758). In AH v State (2007) it was held that the State did have a compelling
interest in regulating the practice of sexting. The 16-year-old in this case
emailed nude photographs of herself to her 17-year-old boyfriend. Wolf J
noted that
prosecuting the child under the statute in question is the least intrusive
means of furthering the States compelling interest. Not prosecuting the
child would do nothing to further the States interest. Prosecution ena-
bles the State to prevent future illegal, exploitative acts by supervising
and providing any necessary counseling to the child. (2007: 236)
In State v ARS (1996) the District Court of Appeal of Florida for the First
District held that there was a compelling interest in State intervention even
in a minorminor situation, to protect the minor from the sexual activity
itself for reasons of health and quality of life (1996: 1387). At the core of
the controversy surrounding the practice of sexting is the extent to which
the State and/or parents can or should intervene in childrens expectations
of their right or freedom to express their identities and autonomy (In re
Gault, 387 US 1, 17). Whilst it is uncontroversial that parents or the State
should intervene in cases of child abuse or where there are risks of exposure
to illegal content, it is less than clear whether regulating the practice of
sexting per se offends a childs rights to privacy and freedom of expression
(Tinker v Des Moines Independent Community School District (1968); Roper v
Williams (2005)). It is not surprising that in view of the difficult moral, so-
cial and legal issues raised by the practice of sexting that a balanced gov-
ernance response has been advocated. Sexting, it is suggested, should not be
seen purely as a law enforcement problem. The Federal Trade Commission
(FTC), in accordance with its governance remit under the Broadband Data
Improvement Act of 2008, has directed its efforts in raising the awareness
of parents and educators so that these adults could mediate the activities
of children (FTC, 2010a). Children need to be made fully aware of the rep-
utational harms and legal ramifications of the practice; the transmission
of texts and images of provocative or sexually explicit nature may result
in their violation of pornography and obscenity laws, in addition to ex-
posing them to peer victimisation (Logan v Sycamore Community School Bd.
of Education (2011)). Jessica Logan committed suicide after nude pictures
of her (from the neck down) were distributed amongst students. A timely
response is also needed, as there are long-term developmental, social and
career implications that accompany convictions under child pornography
laws imprisonment and requirements to register under the sex offender
rules (Lenhart, 2009: 10). A number of legislatures have been at the fore-
front of revising existing laws or introducing new laws to deal with the prac-
tice of sexting. In 2011, at least 18 states in the United States have directed
their efforts towards enacting a legislative framework which requires dis-
trict education boards and schools to implement online child safety policies
aimed at educating young children about the risks of sending images of
minors engaged in lewd or sexually explicit activity, and also reminding
children and their parents of the consequences of violating school policies
prohibiting sexting. The Pennsylvania General Assembly, for example, has
proposed a House Bill 2189 which amends its criminal code to deal with
the offence of dissemination of prohibited materials by minors through the
use of mobile phones and other communication technologies. The South
Carolina General Assembly has introduced a Bill creating an offence of sex-
ting. Children between the ages of 12 and 18 years who transmit to an-
other minor a visual or other content depicting himself or another in a state
Article 8
1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
2. There shall be no interference by a public authority with the exercise of
this right except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or the
economic well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the rights and
freedoms of others.
and unlawful force. Second, the accused must be shown to have intended
or be regarded as being reckless to the consequence of the act (Savage and
Parmenter (1992)). A text threatening violence when a student is making
his way to school could be seen as an example of an imminent threat.
The fact that the threat does not materialise is not relevant (Longdon v DPP
(1976)). In addition to the common law offence of assault, individuals have
also been charged with the offence of battery (Fagan v MPC (1976); Collins v
Wilcock (1984)). The Offences against the Person Act (OAPA) 1861 envisages
that any act or omission which results in a person being put in fear of his or
her bodily integrity can be liable for an assault. An individual on summary
conviction for an assault occasioning actual bodily harm can be imprisoned
for a term not exceeding six months (Section 39 of the CJA 1988). Under
Section 47 of the 1861 Act, an individual can be convicted for any assault
occasioning actual bodily harm. There are two requirements to this statu-
tory offence, which on indictment can result in a five-year imprisonment
term. First, the accused must be shown by his actions (or omissions) to have
caused actual bodily harm to the victim. Second, it must be shown that the
accused intended or was reckless as to the assault or battery (R v Ireland, R
v Burstow (1998)). In R v Donovan (1934) actual bodily harm was regarded
as comprising any harm or injury calculated to interfere with the health or
comfort of the victim. There are limits to the potential liability of schools in
this respect. In Webster v Ridgeway Foundation School (2010) the perpetrators
of an assault on a pupil by his peers and non-pupils on school premises were
prosecuted under Section 18 of the OAPA. The victim in this case suffered
a brutal attack leaving him with serious head injuries inflicted by a non-
pupil. It is quite important to also note the view adopted by the Court with
regard to the question of whether the victim could seek compensation from
the school for these injuries. As Nicol J makes plain:
made clear that the message must be grossly offensive, and whether that is
the case will depend on the standards of a democratic multi-racial society.
be imprisoned for a term not exceeding six months or fined (not exceeding
Level 5). A public electronic communications network is defined as an
electronic communications network provided wholly or mainly for the pur-
pose of making electronic communications service that is provided so as to
be available for use by members of the public. It is important to make clear
that the section only applies to the use of a communications network and
service that have been provided and funded by the public. Section 127(1), it
should be noted, aims to balance the rights to private life and the rights to
freedom of expression enshrined in Articles 8 and 10 of the Human Rights
Act 1998, respectively. The leading case is DPP v Collins (2006). The accused
made a number of phone calls which were grossly offensive to the office of a
Member of Parliament. Racially offensive telephone messages were also left
by the accused. At first instance, the Leicestershire Justices dismissed the
charges on the grounds that although the words used (i.e. Wogs, Pakis
and Black Bastards) were offensive they were not of a gross nature. Lord
Bingham observed that, unlike Section 1 of the MCA, Section 127 did not
criminalise communications which individuals find annoying or offensive.
The question whether a message is grossly offensive is one of fact and
based on the standards of an open and just multi-racial society, and that
the words must be judged taking account of their context and all relevant
circumstances (paragraph 9). Furthermore, Section 127(1) will be triggered
as soon the communication has been sent. This can be contrasted with
Section 127(2) where there is explicit reference to the requirement of proof
relating to the unlawful purpose and knowledge of the sender of the mes-
sage. Lord Bingham was, however, keen to emphasise that some degree of
culpability must be evidenced. As Lord Carswell made it clear, the essence
of Section 127(1) is whether reasonable persons in our society would find it
grossly offensive (2006: 21).
victims voice mail. These three messages were left within a space of five
minutes. The court held that the communications constituted a course of
conduct. The course of conduct requirement will also be satisfied if the
perpetrator sends an SMS text on one occasion and then follows up with
an email or physical exchange. Finally, it needs to be shown that there
is a link between each corresponding act before there can be said to be
a course of conduct. In Pratt v DPP (2001) Latham LJ stated that pros-
ecuting authorities should be hesitant about using this particular offence
in circumstances ... where there are only a small number of incidents.
They should ensure that what they are seeking the court to adjudicate
upon can properly fall within the category of behaviour which is behav-
iour causing harassment of the other, not merely that there have been
two or more incidents (paragraph 12).
2. The course of conduct must constitute harassment. According to the Home
Office, a course of conduct which alarms the victim or causes the victim
distress will satisfy this requirement (Home Office, 2001). In Majrowski v
Guys and St Thomass NHS Trust (2007), Lord Birkenhead noted that the
Act was aimed at all forms of harassment wherever it occurs but noted
that a distinction needed to be made between the upset and annoyances
encountered in dealings with people and those which warrant the im-
position of criminal liability (paragraph 30). In Esther Thomas v News
Group Newspapers Limited, Simon Hughes (2001), Lord Phillips ventured to
suggest that a much higher threshold was needed for prosecutions under
this legislation:
There are many actions that foreseeably alarm or cause a person dis-
tress that could not possibly be described as harassment. It seems to
me that Section 7 is dealing with that element of the offence which is
constituted by the effect of the conduct rather than with the types of
conduct that produce that effect.
The Act does not attempt to define the type of conduct that is capable
of constituting harassment. Harassment is, however, a word which
has a meaning which is generally understood. It describes conduct tar-
geted at an individual which is calculated to produce the consequences
described in Section 7 and which is oppressive and unreasonable. (para-
graphs 2930)
3. The accused must know or ought to know that the conduct amounts to
harassment. Under Section 1(1)(b) if an accused knows that his actions
constitute harassment, this requirement will be met. The section also
provides an alternative, where an objective test can be applied. For ex-
ample, a defendants lack of awareness that his actions were harassing the
victim will not be a defence if any reasonable person would regard the
conduct as harassment. In R v Colohan (2001) it was stated that the rea-
sonable person test would not include the particular characteristics of the
accused. The accused in this case sought to argue that his course of con-
duct was reasonable in view of the fact that he was diagnosed as a schizo-
phrenic. This argument was rejected by the court on the grounds that
permitting such an interpretation into the construction of the statute
would prevent the PHA from achieving its primary purpose, namely, to
give protection to victims of harassment. An accused convicted under
the PHA faces six months imprisonment or a fine. Where the accused
has been convicted for the offence in Section 4, which is the course of
conduct causing another fear that violence would be used against the
victim, the maximum term of imprisonment is five years or a fine (cf.
Sections 1(2) and 4(4)).
The Tellus4 Survey reported that two-fifths of the children surveyed had
been bullied at least on a weekly basis, and that disability, age and ethnicity
were often seen as contributory factors (Chamberlain et al., 2010: 367).
Mencap noted an increase in the victimisation of individuals with a learn-
ing disability. Eight of out of ten children with learning disabilities have
been the subject of bullying incidents (Mencap, 2007). The Schools Health
Education Unit surveyed young lesbian, gay, bisexual people about their
experiences in school and found that over 65 per cent of the respondents
had been the target of bullying (Hunt et al., 2007). Pupils are entitled to
protection under the Equality Act 2010, which requires schools and educa-
tors to take positive steps in preventing all forms of victimisation, harass-
ment and discrimination. In practical terms, the Equality Act 2010 requires
education service providers to adopt reasonable measures which safeguard
pupils from all forms of victimisation, including those related to disability,
gender, sexual orientation, race and religion. More disconcerting is the fact
that pupils are now being excluded from schools for engaging in a range
of misconduct. The recent data for exclusions show that there were 50
exclusions for bullying, 20 exclusions for racist abuse and 110 exclusions
for sexual misconduct (DfE, 2010). Exclusions for persistent disruptive
auditing and recording system for bullying incidents. It also makes avail-
able adult mediation services to its pupils. Finally, the Beavers Community
Primary in Hounslow is a UN International Childrens Emergency Fund
(UNICEF)-accredited Rights Respecting School. It provides a buddy scheme,
has a value-based curriculum and equips children with conflict manage-
ment skills.
It is not possible to draw any firm conclusions regarding the effectiveness
of all these positive measures aimed at reducing the level of peer victimisa-
tion experienced by children. That said, these policies could be regarded as
proactive measures aimed at embedding extra-legal standards and mecha-
nisms to complement the overarching regulatory framework provided by
the criminal law. These proactive interventions are significant in that they
now create obligations which local board of education authorities must
comply with. For example, schools will now be required to make clear to
all students the type of conduct which is now prohibited and the sanctions
that accompany violation of school policies. Students and parents of stu-
dents are expected to be notified of these rules and the information is to be
included in student and parent handbooks. Teachers and school employees
are also required to alert the school principal if they have credible infor-
mation that a pupil may be the possible target of bullying. Most important
of all, schools will be required to demonstrate that they now take peer vic-
timisation seriously by developing procedures for counselling, reporting,
investigating and disciplining. These anti-bullying enactments facilitate the
creation of a MSIG framework, which enable schools to develop policies,
measures and strategies that will create a toxic-free learning environment
(New York Education Law, 1017 (2010)). The extension of the acceptable
behaviour rules and norms both during school and after school hours is a
clear recognition that as Web 2.0 technologies become an integral part of
childrens lives, there are significant opportunities for deviancy and victim-
isation to be perpetrated. Finally, the sanctions for violating school policies
prohibiting bullying counselling, parental/teacher intervention, suspen-
sion or exclusion are preferable where clear violations of the criminal law
have not taken place.
Some general comments can be offered by way of conclusion with regard
to the interaction between criminal law rules and norms on the one hand
and the role of schools in promoting greater awareness amongst children
about their rights and responsibilities in managing their online and off-
line interactions on the other. First, the uncomfortable or uneasy truth, for
those who view the First Amendment rights or the Judiciary as being ob-
structive, is that the criminal law does not provide sanctions for all forms
of unpleasant speech (as noted above). This is probably a reflection of the
balance the criminal law attempts to strike between the instances where
State intervention is deemed to be necessary and those situations where
there is an expectation that organisations, schools, parents and individuals
Before examining the principal regulatory framework that defines the scope
of an online intermediarys responsibility for safeguarding children in re-
lation to exposure to illegal or inappropriate content, under the Electronic
Commerce Directive 2000/31/EC, it should first be noted that there is no
disagreement that illegal content should be blocked by ISPs and online ser-
vice providers. Just as in the offline environment, many will agree that chil-
dren should not have access to illegal and adult content. It does not come as
a surprise that childrens access to illegal or age-inappropriate content has
incest and genocide (e.g. Little Children, The Woodsman, Doubt, Sex and
the City and Schindlers List) (BBFC, 2011). The body classifies films on be-
half of Local Authorities in this country, who in turn license cinemas under
the Licensing Act 2003. One of the conditions for licensing cinemas under
the 2003 Act is that admission of children below the age of 18 years is to
be restricted in accordance with the classification recommendations of the
BBFC or the licensing authority. The Video Recordings Act 1984 provides
the BBFC with the power to classify video works which are released as video
recordings. Works within its terms of reference include films, video games
and television programmes which are supplied on formats like tape, disc or
other device capable of storing electronic data. Apart from videos, which
are specifically exempted, all works must be classified by the BBFC. It is an
offence to offer to supply unclassified material on video or DVD contrary to
the provisions of the Video Recordings Act 1984. Video on demand con-
tent regulation in the United Kingdom is now overseen by the Association
for Television on Demand (ATVOD). Increasingly, as video works are dis-
tributed in alternative formats (e.g. downloads or streaming) a voluntary
classification scheme is provided under BBFC.online. The general principles
of facilitating public access to a wide range of works and informed decision-
making are, however, qualified in three main respects. First, the BBFC will
not classify material if it either is in conflict with the law or has been pro-
duced through the commission of a criminal offence. Second, the BBFC may
require selected parts of the work to be cut, if it is to be made available for
screening in cinemas or distributed in a video or DVD format (e.g. moral
harm, desensitising a viewer to the effects of violence, glorifying abuse, en-
couraging unhealthy fantasies amongst children) (cf. R (on the application of
British Board of Film Classification) v Video Appeals Committee (2008)). Third,
the BBFC may intervene to recommend a re-classification, if the material is
likely to be viewed as unacceptable to general public opinion (e.g. filthy lan-
guage may be deemed inappropriate for 12 rating). As a public authority,
the BBFC aims to ensure that regulated works do not infringe child pro-
tection laws like the PCA 1978 and the OPA 1959 and 1964.
Content regulation issues can arise in a number of ways. For example, by
virtue of Section 1(1)(b) of the PCA 1978, an online intermediary can be
prosecuted for displaying indecent photographs (or pseudo-photographs),
for being in possession of such contents or for facilitating access to others.
Section 1(1)(d) of the PCA also makes it an offence to publish or cause to be
published any advertisement likely to be understood as conveying that the
advertiser distributes or shows such indecent photographs (or pseudo-photo-
graphs), or intends to do so. ISPs and newsgroups need to be on the alert for
hosting discussion groups and forums which imply that they are a repository
or venue for those with prurient interests in children or extreme pornography.
Whilst it is understandable that online intermediaries can and should play
an important part in reinforcing existing standards and laws, it would not
Online intermediaries can only lay claim to immunity if they bring their
actions within a limited range of defences. The defences apply to informa-
tion or intermediary service providers. An information society service is
Whilst this automatic storage process will not trigger infringement mecha-
nisms, a court order or notification from an administrative authority, in
accordance with the legal rules of the Member State, can be relied upon to
require a service provider to terminate or prevent an infringement. Article
14 addresses the situation where online intermediaries provide individuals
and organisations with online facilities that enable them to store informa-
tion. As a general rule, the online intermediary is not liable for information
stored on the website of the recipient of the service if the following condi-
tions are met:
(a) the provider does not have actual knowledge of illegal activity or in-
formation and, as regards claims for damages, is not aware of facts or
circumstances from which the illegal activity or information is appar-
ent; or
(b) the provider, upon obtaining such knowledge or awareness, acts exped-
itiously to remove or to disable access to the information.
In Godfrey v Demon Internet Ltd (1999) the failure by an ISP to act exped-
itiously after being notified of a possible defamatory posting being trans-
mitted from its servers was deemed to give rise to civil liability. Of course,
if the recipient of the service is acting under the authority of the online
intermediary or if the service provider controls a website where content is
uploaded different considerations may apply. In Kaschke v Gray (2010) Stadlen
J declined to grant a summary judgment in favour of an information service
the harm suffered by her daughter was unsuccessful. The minor in this case
met an online sexual predator on the social networking site. He lured her to
an offline meeting and assaulted her. The Court held that the online inter-
mediary was not an information content provider and consequently the
civil suit against MySpace failed (2007: 850). The Court also observed, obiter,
the plaintiffs claims to be unwarranted, particularly as the child lied about
her actual age to bypass the age requirement and then violated MySpaces
express rules by giving out her personal information (2007: 850).
230(1) regards Internet service providers and social networking sites as
interactive computer service providers and consequently they would not
be treated as publishers or speakers of any information transmitted on their
communication networks or services. 223 provides online intermediaries
with defences to criminal prosecutions arising from a third partys misuse
of the communication networks and services to post, request or engage in
any communication which is obscene, or child pornography, or used with
intent to harass or victimise another individual. An online intermediary
will not be found to have violated the provisions for hosting obscene child
pornography or facilitate harassment by virtue of
questions about when and how ISPs should act to deal with different
types of traffic are as much to do with ensuring that we maintain cus-
tomer confidence and opinion. The publics attitude towards manage-
ment of their on-line behaviour is far from consistent. When it comes to
issues of child protection, or racist or terrorist websites, there is almost
universal agreement that ISPs should take action. However in a number
That the law should discourage good Samaritans may seem to be sur-
prising, as the following response by the Childrens Charities Coalition on
Internet Safety to the House of Lords Select Committee notes:
Evidentiary considerations
As voice, data and video signals become the medium through which online
criminal activity take place, law enforcement authorities increasingly turn
to communications data and intercept evidence as part of their investiga-
tion strategy. Under the Regulation of Investigatory Powers Act (RIPA) 2000,
the interception of any communication of a person in the United Kingdom
must be consistent with the rule of law (Rotaru v Romania (2000); Liberty v
UK (2008); Iordachi v Moldova (2009)). In Liberty v UK (2008) the European
Court of Human Rights made it clear that interception of communications
must take into account an individuals human rights, in particular Article
8 of the ECHR. The enactment of RIPA 2000 is believed to have addressed
some of the shortcomings of the previous law. Certain public authorities,
including law enforcement authorities, are permitted to acquire communi-
cations data from Communication Service Providers (CSPs). The procedures
for accessing the communication data are subject to the safeguards provided
in RIPA and the Code of Practice. Communications data comprises the
who, when and where of a communication session (Interception of
Communications Commissioner, 2010: 7). The request for communications
data can be made to CSPs and ISPs. Public authorities made 525,130 requests
to these organisations for the year ending December 2009. This number was
an increase from the request made in the previous year (504,073), and it is in
large part attributed to police forces investigating Internet-related criminal
activity, and consequently require access to communications data (ibid.,
2010: 8). It is beyond the scope of this work to engage in an assessment of
the RIPA. Instead, the focus will be on the nature of digital information and
the use of entrapment by law enforcement in prosecuting individuals for
child sex offences.
Digital evidence increasingly plays an important part in linking an of-
fender to the crime. Casey describes digital evidence as any data stored
Crime
Scene
Suspect Victim
accused who made the child pornography content available on the day in
question. It appears that the accuseds computer was not password protected
and that it could have been accessed and used by other persons living in the
same residence. In other investigations, failure to obtain digital data in the
form of history and chat logs prevented the successful prosecution of an
accused. For example, in Paul Savage v R (2010) the Court of Appeal in the
Supreme Court of Victoria held that three counts of committing an in-
decent act with or in the presence of a child under the age of 16 had to be
quashed on the grounds that the evidence gathered from the mobile phones
of a number of complainants and those of the suspect were insufficient to
amount to evidence of offences having been committed. The Internet and
communication technologies can also introduce a number of complications
into the process of detecting, investigating and prosecuting offences against
children. A report issued in 2009 by Statistics Canada pointed to the logis-
tical and technological challenges facing law enforcement in Canada when
investigating and prosecuting Internet child luring incidents (Laughlin
et al., 2009). The report covered investigations spanning the years 2006 and
2007. From the 464 cases of Internet child luring considered, it was found
that 64 per cent of the incidents reported were not solved. Individuals can
make use of anonymising software in chat rooms to make sure that conver-
sations remain private. Additionally, access to content on the computer can
be prevented by the use of encryption technology. The scale of the chal-
lenge facing law enforcement should not be underestimated. Collecting
and preserving digital evidence can also pose obstacles during an investiga-
tion portable storage devices containing valuable information can be
removed from the crime scene or even concealed in file registries (Kerr,
2005: 53740). Where encryption protections have been used by an of-
fender, the process of gathering digital evidence may require the investi-
gating team to ascertain whether the access restrictions relate to the
user-resource level or those operating at software-network level (Walden,
2007: 2823). Depending on the access protection controls adopted, the in-
vestigating officer may have to approach the offender, the organisation or
the commercial online services provider to gain access to relevant digital
evidence (US v Wayerski (2010)). In R v J (2009) the user-level access protec-
tion employed by the offender meant that law enforcement needed to only
obtain a search warrant to gain access to the incriminating material on the
computer. Difficulties may, however, be encountered where the informa-
tion stored online or being transmitted is protected by encryption tech-
nology and/or located in servers outside the national jurisdiction. An
example of the former situation can be seen in R v Mara (2009). The accused
was part of an online group trading in child exploitation content. The tech-
nical challenge faced by law enforcement in this case emerged from the fact
that the content traded in by the group was posted in newsgroups in binary
files and hence could not be viewed by those who did not have an access
for which he is now being tried, that evidence may be excluded (R v Morelli
(2010); HML v the Queen, SB v the Queen, OAE v the Queen (2008) HCA 16, R v
H (1995), Section 78(1) PACE 1984; cf. Sections 101(1)(d) and 107 CJA 2003).
Prosecutions use of evidence gathered during the investigation phase can
also be challenged on the grounds of hearsay or that the constitutional
rights of the accused have been infringed. For example, in the United States
the law governing electronic evidence in criminal investigations is prin-
cipally found in the jurisprudence on Fourth Amendment and statutory
privacy laws (Kerr, 2010). It is of particular interest to note the observation
made in the US Court of Appeals for the Ninth Circuit in US v Comprehensive
Drug Testing II (2010). The ruling suggested the need for a defined set of
protocols, which ensured that searches undertaken by law enforcement au-
thorities did not overreach the rights of the accused (at 1119). Under the
plain view exception to the Fourth Amendment, law enforcement can seize
relevant incriminating evidence if access gained to the venue was legal
at the first instance and the evidence seized was readily apparent (Kerr,
2005). Both US v Mann (2010) and US v Williams (2010) appear not to have
been inclined to restrict the ability of law enforcement to gathering rele-
vant incriminating evidence under the plain view exception to the Fourth
Amendment (Ohm, 2011). In Williams (2010) a search warrant executed for
a harassment charge was deemed not to preclude the licence authorising
law enforcement to access files in the computer; following the search, a
large volume of child abuse images was found in the computer. In Mann, the
approach adopted suggests that ordinary approaches to the constitutional
boundaries of search procedures may have to take into account the fact
that computer files may be mislabelled or concealed within the directory to
evade identification by law enforcement (2010: 782). The Court rejected the
accuseds argument that law enforcement exceeded the authority provided
by the search warrant to gather evidence of voyeurism by accessing files
which contained child pornography (2010: 781). It may be interesting to ex-
plore briefly the position in Canada. Evidence seized in contravention of an
accuseds constitutional rights under Sections 8 and 10(b) of the Canadian
Charter of Rights and Freedoms (the Charter) can be rendered inadmissible.
As a general rule, a search is reasonable if it is conducted in accordance
with the rule of law (R v Stillman (1997); R v Collins, (1987)). In R v Boudreau-
Fontaine (2010) the Court of Appeal held that derivative evidence gathered
from a computer seized during an unlawful arrest was rightly held by the
trial judge to be inadmissible on the grounds of a series of violations of the
accuseds rights the absence of any reasonable grounds for arresting the
accused and searching the computer, the act of compelling the accused to
hand over the username and password information and the disregard of
the accuseds right to not self-incriminate himself. The accused was sitting
in his car when he was approached by two police officers. He was asked
to produce some identification and these were subsequently checked from
the patrol cars onboard computer. The search results indicated that the
accused had been previously charged with a number of offences including
the distribution of child pornography and was on probation. As part of the
probation order the accused was prohibited from accessing the Internet.
There was some uncertainty whether the accused was in fact accessing the
Internet when approached by the police officers. Notwithstanding their
doubts, the accused was arrested and a search warrant was then issued
to permit seizure of the contents in his car, which included the laptop.
Based on evidence gathered from the computer and the unlawful search,
the accused was subsequently charged with possession of child pornog-
raphy and in breach of his probation order. The Court of Appeal made
clear that for a seizure to be lawful, the items to be made the subject of the
warrant had to be specifically described (2010: paragraph 50). As Doyon
JA observed:
In the present case, we are not faced with minor violations. They are ser-
ious ... Rather, they are repeated violations of several Charter rights. The
officers knew, or should have known, that their actions were contrary to
the Charter. (2010: paragraph 59)
Principle 1
No action taken by law enforcement agencies or their agents should change data held
on a computer or storage media which may subsequently be relied upon in court.
Principle 2
The person in charge of the investigation (the case officer) has overall responsibility
for ensuring that the law and these principles are adhered to.
Source: ACPO Good Practice Guide For Computer-Based Electronic Evidence (version 4)
www.7safe.com.
on this P2P network. The results correspond with similar criminal activity
in other P2P networks. In a study of paedophile activities on the Internet,
Latapy focused on paedophile activities on eDonkey, a well-known file-shar-
ing software (Latapy, 2009). Using simple honeypot portals, it was reported
that over a 32-day period, 24 distributed honeypots were advertising four
files, and over 110,049 IP addresses were identified and 28,007 distinct files
noted.
simply excluded on the grounds that the methods employed by the police
were unfair or unlawful. Section 78 PACE 1984 now reverses the decision
regarding the admissibility unfairly obtained evidence. The statutory provi-
sion provides that a court has the residual discretion to exclude evidence on
which the prosecution proposes to rely if, having regard to all the circum-
stances, the admission of the evidence would have such an adverse effect on
the fairness of the proceedings that it ought not be admitted. This is not dis-
similar to the approach adopted in Australia following rulings in Ridgeway
v the Queen (1995) and R v Thomas (2006). The present procedural rules gov-
erning the admissibility of evidence can be found in the Evidence Act 2008,
Sections 1358. The High Court in Ridgeway (1995) suggested that in cases
where entrapment is shown to be present, the trial judge has the discretion
to exclude evidence from the investigation, if the methods employed were
found to be unlawful or improper ((1995) paragraphs 1418). Police con-
duct which induces a state-created crime (e.g. entrapment) is viewed by the
Judiciary as being unacceptable and improper. As Lord Nicholls indicated in
R v Loosely (2001):
It is simply not acceptable that the state through its agents should lure
its citizens into committing acts forbidden by the law and then seek to
prosecute them for doing so. That would be entrapment. That would
be a misuse of state power, and an abuse of the process of the courts.
(paragraph 1)
would have such an adverse effect on the fairness of the proceedings that
it ought to be excluded. The police commenced investigations after being
informed by a journalist that an anonymous individual had scribbled graffiti
messages on toilet doors in trains. These messages aimed to entice children
for sexual activity. One example of a message placed by the accused was as
follows:
wanted for sex, girls from 8 to 13, text only [mobile telephone number]
A journalist contacted the number and received a text requesting the fol-
lowing information: her age, whether she was a virgin, her willingness to
perform oral sex and a named picture of herself. The journalist informed
the police, who then launched a sting operation. The undercover officer pre-
tended to be a young girl by the name of Amy, aged 12. Amy contacted the
offender and was then requested to provide the information that was previ-
ously requested from the journalist. A meeting was arranged but it was one
where the offender failed to turn up. The accused subsequently commenced
communications with Amy during which time he indicated the sexual acts
he would be engaging with her. The accused was arrested and charged for a
range of offences under the SOA 2003. Of particular interest here is the courts
response to the accuseds claim that the proceedings had to be stayed on the
grounds that the use of entrapment was an abuse of police powers. On appeal
against conviction, Thomas LJ stressed that covert policing operations should
not incite an accused to commit an offence (2007: paragraph 23). The key
point here is the Court of Appeals observation that police covert operations
in this case did not go beyond responding to the information requested by
the accused. We can infer from this observation that had the police instigated
the communications (e.g. approaching the accused and indicating that Amy
was available for sexual activity) there may have been an arguable case of en-
trapment. It is also clear, as confirmed by the approach of the Court of Appeal
in R v Jones, that a balance has to be struck between the public interest in pros-
ecuting individuals who entice minors for sexual activity and the competing
public interest in protecting individuals from unlawful or unfair police ac-
tivity (A-Gs Reference (No. 3 of 1999) (2001) at 590 per Lord Hutton).
Sting operations have been employed in the United States to detect those
who misuse the Internet to persuade or induce minors to engage in sexual
activity (The People v Karampal Singh (2010); Jacobson v US (1992); US v Brand
(2006). In US v Orr (2010) the accused was convicted under the provisions of
18 USCA 2422 (a) and (b) using an interstate commerce to attempt to per-
suade or induce a minor to travel to engage in sexual activity. The accused
appealed on the grounds that he was entrapped. An affirmative defence of
entrapment requires an accused to adduce the relevant standard of proof
with regard to two elements: (1) the crime was induced by law enforcement;
and (2) the accused lacked the disposition to engage in criminal conduct. The
In US v Curtin (2006) the accused was charged with travelling across state
lines with intent to engage in a sexual act with a minor, in violation of 18
USC 2423(b), and using an interstate facility to attempt to persuade a
minor to engage in sexual acts, in violation of 18 USC 2422(b). The court
observed that the general tenor of the communications between law en-
forcement and the accused was one where the latter was clearly motivated
by a desire to initiate a minor into the world of adult sex. The ruling in US v
Ross (2010) provides another illustration of the effectiveness of sting opera-
tions, which comply with due process measures; the accused was charged
with the offence of attempting to entice a minor for sexual activity (18 USCA
2422(b)). The accused had Internet chats, email exchanges and phone calls
with a person whom he believed to be a minor. He travelled to a location
he thought was her home. His attempt to raise the defence of entrapment
failed because there was no inducement provided by the undercover police
officer. These cases illustrate a paradox in the use of sting operations and
its continued relevance to issues of admissibility on the one hand that
individuals should be held accountable for their actions; and on the other
that individuals should not be improperly induced into committing crim-
inal acts by the mere fact that they may be thought to have a tendency or
disposition to commit criminal acts (Feinberg, 2003: 62).
Conclusion
This chapter has described and explained how the criminal law responds
to contact, content and conduct risks resulting from childrens consump-
tion of Web 2.0 technologies and social media. The analysis undertaken
namely, the role and response of the criminal law in promoting trust and
confidence illustrates many of the governance challenges posed by digital
information and the end-to-end architecture for policymakers, law enforce-
ment, parents, educators and children. Some examples and case illustrations
were also provided to highlight the legal and evidentiary issues as well as
the forensic significance of using digital evidence in prosecuting individuals
for violating child sexual abuse and exploitation laws. The deployment of
covert and sting operations and investment in Hi-Tec Crime units for inves-
tigating, collecting and presenting digital evidence will continue to play an
important role in enhancing the safety of children in the online environ-
ment. One conclusion reached in this chapter is that the judicial interpret-
ation of its national laws and the successful investigation and prosecution of
individuals found to have used Web 2.0 technologies to engage in child sex
offences suggest that criminal law standards and rules can be extended to
this new context of child protection policymaking. It is fair to say that the
substantive rules put in place by governments are satisfactory (Presidents
Working Group on Unlawful Conduct on the Internet, 2000). It has been
shown that the problem facing policymakers is not so much to do with the
application of its laws (though the extension of its laws beyond its national
boundaries will continue to pose a challenge). One of the challenges facing
policymakers in this area of governance is to assess how best the responsi-
bility for implementing and enforcing existing legal standards and rules can
be extended across the various stakeholders. Recognition of the limited role
of the State and constraints on its ability to police and enforce its laws may
re-energise efforts towards better coordinating MSIG strategies at national
and international levels. Issues like content regulation and those resulting
from other risk-prone activities may also require educators and parents to
be more aware of their obligations and the extra-legal strategies that can be
employed when assisting children to use the Internet in a safe and respon-
sible manner (Case, 959).
Overview
159
the reach of their laws for pragmatic or political reasons in areas like intel-
lectual property and national security (Lowe, 1985, 732). Extraterritorial
legislation can be regarded as either a puzzling contradiction or a paradox
of a world of multiple, sovereign authorities (Desautels-Stein, 2008: 514).
Within the context of criminal jurisdiction, the exercise by a State of its
powers to prescribe, adjudicate and enforce its laws and punish offenders
is regarded as being consistent with international law norms. As Berman
correctly observes, criminal jurisdiction involves the exercise of powers
over people, so powers over individuals themselves (including their lib-
erty), over their property, and over their activities (Berman, 2003: 3).
Whilst tribunals like the International Criminal Court have jurisdiction
over particular areas like humanitarian law, national courts in the main
assert jurisdiction over criminal law violations, which they can legitim-
ately investigate and prosecute. A State can assume jurisdiction over crim-
inal acts that take place within its territory, or in cases where there is a
transborder element that a sufficient connection exists between the con-
duct complained of and its laws (R v Smith (Wallace Duncan) (No. 4) (2004)).
As Lord Reid indicated in Treacy v DPP (1971):
Territoriality Principle
Active Personality Principle
Passive Personality Principle
Protective Principle
Universality Principle
Territoriality Principle
This is a fundamental principle governing criminal jurisdiction as recog-
nised in the Island of Palmas Case:
activities taking place in another State (Keitner, 2011: 568); the premise
here being that the conduct engaged in by the national in the overseas
country does not have an adverse or harmful effect within nationals State
(Treacy v DPP (1971)). However, in the final upshot the jurisdictional issues
may turn on the construction of the particular legislative enactment (R v
Manning (1998) 461, 476).
Protective Principle
The rationale for the protective principle is that States have the inalienable
authority to exercise jurisdiction over persons or events situated in another
jurisdiction when an act taking place outside its territory has or is likely to
have an adverse effect on its security or interests (R v Abu Hamza (2006)).
Clearly, the extent to which this principle applies will depend on the nature
of the criminal activity concerned (Hirst, 2003: 115). As seen above, in re-
lation to the extraterritorial reach of the laws, conduct like piracy, hijack-
ing and terrorism are activities which can be included within the scope of
the protective principle. In cases where jurisdiction is asserted, there is a
close relationship between the protective principle and the effects test
employed by States to justify the assumption of jurisdiction over an act that
has taken place outside its territory (US v Tollman (2008)).
Universality Principle
According to the Princeton Principles on Universal Jurisdiction, a State
may assert jurisdiction over a person notwithstanding the absence of
any connecting factor, solely on the grounds of the nature of the act con-
cerned (Sadat, 2001: 24164). Universal jurisdiction for present purposes is
described as criminal jurisdiction based solely on the nature of the crime,
without regard to where the crime was committed, the nationality of the
alleged or convicted perpetrator, the nationality of the victim, or any other
connection to the state exercising such jurisdiction (Princeton University
Program in Law and Public Affairs, 2001). Consequently, a State can assert
criminal jurisdiction beyond its territorial boundaries, if the nature of
the crime is such that it justifies the exercise of its sovereign authority
(Colangelo, 2009: 881926). The prosecuting State can as a consequence
subject the individual to the machinery of the criminal law without regard
to the place where the acts were deemed to have taken place or the nation-
ality of the perpetrator concerned (Fry, 2002: 174). This exercise of State au-
thority is subject to a number of due process safeguards the requirement
that the exercise of that authority is by a competent and ordinary judicial
body, the recourse to formal extradition hearings to ascertain whether
an extraditable crime has been committed by the extraditable person and
that the appearance of this person before a court of law in the requesting
State does not violate established international norms and standards on
the protection of human rights (Akyol v DPP Zwole Lelystad Netherlands
Where the commission of a child sex offence permits multiple States juris-
diction over the matter, parties are encouraged to coordinate their activities
with a view to determining the most appropriate jurisdiction for prosecu-
tion (Article 22(5)). The Cybercrime Convention aims to reduce the op-
portunities for perpetrators to engage in forum shopping as Article 22(3)
stipulates that parties shall adopt such measures as may be necessary to es-
tablish jurisdiction and that parties cooperate with each other ... through
the application of relevant international instruments on international co-op-
eration in criminal matters (Article 23). These Conventions can be broadly
seen as reflecting growing consensus amongst the international community
that certain forms of sexual and commercial exploitation of children should
be treated as crimes regardless of where they are committed.
destination State. The double criminality rule may prevent the responding
State from treating the offence as an extraditable crime. One could en-
visage a situation where a requesting State, which criminalises all forms of
pornography, seeks to have an offender extradited from the United States
for distributing pseudo-photographs of a virtual child in the former jur-
isdiction. Under US Federal Law, the possession of pseudo-photographs of
children per se is not a criminal offence, unless these are regarded as contra-
vening the child pornography legislation or the obscenity test under Miller
v California (1973). Broadly, supranational and international policy instru-
ments do provide an opportunity for States to overcome the potential prob-
lems that may arise from the transborder dimensions of child sex offence
by harmonisation (Beaulieu, 2008). The Proposed Directive is one example
of the use of regulatory instruments to harmonise child protection laws
within EU Member States.
As a child protection measure, the ability of a State to investigate and
prosecute citizens engaged in child sex offences in overseas jurisdictions
has some advantages (Hirst, 2003). For example, States can now launch
prosecutions, should the destination country not have sufficient law en-
forcement resources or expertise in investigating and prosecuting child sex
offenders from the home country. Second, the legislation can also be pre-
emptive in the sense that law enforcement in the home country can now
make a timely intervention before the offender travels abroad to meet the
child (or conversely, where an arrangement is made for the child to travel
to the home country of the offender. US v Seljan (2007) is not only an ex-
ample of the application of the nationality principle but it also serves to
highlight how potential victims can be safeguarded by pre-emptive meas-
ures undertaken in the home jurisdiction where extraterritorial laws have
been enacted. The accused in this case was a US national who was charged
and convicted for a range of offences involving sexual misconduct with
children based in the Philippines. He was stopped when he attempted to
board his flight and subsequently arrested and prosecuted for a number of
child sex offences; evidence was gathered showing that he was attempt-
ing to travel with intent to engage in illicit sexual conduct with a minor
contrary to 18 US 2423(b) and (e), enabled law enforcement to make a
timely intervention and apprehend the offender. Finally, the ability of a
State to enforce its criminal laws extraterritorially corresponds with one
of the justifications of the criminal law, which is to deter its nationals
from engaging in criminal acts albeit in destination countries (R v Klassen
(2008); Mody, 2001).
Two principles continue to proscribe the extraterritorial reach of national
laws: (i) double criminality (ii) and double jeopardy. As noted previously,
the use of bilateral treaty arrangements and supranational child protec-
tion instruments minimise the impact of these rules (see later). With regard
to the latter, the principle non bis in idem espouses the ideal of fairness in
The decisive factor is not whether the right to impose a penalty is exercised
under one legal system or under several legal systems, but that in order
to know whether an act may be punished more than once, the person ex-
ercising the power to impose the penalty, must ascertain whether, with
the various penalties, the same legal principles are being protected or
whether, on the contrary, the values which are being protected are differ-
ent. (Cases C-187/01 and C-385/01: paragraph 56)
In essence, the principle provides that a person who has been prosecuted for
a criminal offence in one jurisdiction should not be subjected thereafter to
multiple prosecutions in other jurisdictions for the same offence (Abelson,
2009: 138). The rationale for this rule, albeit the claims that victims of
crimes are equally deserving of consideration by the criminal justice system,
is the respect for humanity and dignity of individuals, particularly those
prosecuted for serious crimes (Fletcher, 2003a: 581). Before the principle can
be applied in the accuseds favour, it must be shown that the proceedings
were conducted in good faith and that the judgment reached by the judicial
or relevant body was consistent with international norms and principles
of due process. One effect of this principle is that a national returning to
his country cannot be prosecuted for the same crime on the grounds of
acquittal or that the sentence meted by the overseas court was lower than
the punishment handed down in the country of residence. In Bohning v
Government of the United States of America (2006), the appellant sought to
challenge an extradition request from the United States on the grounds that
in view of the specific provisions in Section 80 of the Extradition Act 2003,
his extradition would violate the rule against double jeopardy. The appellant
travelled to the United Kingdom from the United States and attempted to
engage in sexual activity with a 13-year-old girl who lived in Birmingham.
Following his arrest, his laptop was seized and incriminating evidence was
subsequently discovered. The evidence included over 10,000 images depict-
ing sexual abuse of children and babies; emails and chat conversations be-
tween the appellant and girls (including the minor in Birmingham). The
appellant was charged with 20 counts of child sex offences, including pos-
session of indecent material, distribution of an indecent photograph of a
minor and publication of an article, contrary to the provisions under the
PCA 1978 and the SOA 2003. Crucially, when drafting the indictment,
prosecution ensured that the offences with which the appellant was being
charged did not traverse those charges which were pending against him in
the United States. Following the appellants conviction and his serving of a
custodial sentence, the US government sought his extradition for offences
coming within a number of categories which were not the subject of the
charges in the United Kingdom: (i) incitement of B and two other young
girls, one resident in the United Kingdom and the other in the United States,
to commit acts of indecency; and (ii) distribution and possession charges
in respect of the material that had been found on the laptop. The Court
of Appeal agreed that an offender could not be prosecuted twice for the
same crime (paragraph 21). It, however, held that the double jeopardy rule
did not prevent prosecution for separate offences, which arose out of the
same facts (e.g. incitement), or to offences, which could have been but were
not charged (ibid.). Consequently, the Court ruled that the extradition of
the appellant did not violate the double jeopardy rule. The application of
this rule in respect of an individuals acquittal of crimes outside the United
Kingdom must now be reconsidered in the light of the reforms introduced
by Part 10 of the CJA 2003 (Fletcher, 2003b). Sections 759 of the 2003
Act enable persons acquitted for qualifying offences to be retried where
new and compelling evidence has emerged (R v A (2008)). Section 75 makes
clear that Part 10 applies to acquittals. There are a number of points to be
borne in mind with regard to re-trials of individuals acquitted of child sex
offences in jurisdictions outside the United Kingdom. The first thing to be
noted is that amendments to the scope of the double jeopardy rule only
apply to serious offences regarded as qualifying. Murder, manslaughter
and rape are obviously included within this category. Acquittals in relation
to offences involving sexual activity with a minor, however, will be deemed
to be qualifying but only in the limited situation where the victim is
below 13 years. This age restriction has obvious investigatory implications
since it leaves those victims above the age threshold not only vulnerable
to further sexual exploitation but also without any legal redress. Second,
even if the age threshold is satisfied, an application has still to be made
to the Court of Appeal for a ruling on whether the acquittal in a foreign
court is a bar to a re-trial. This application to the Court of Appeal can only
be made with the written consent of the Director of Public Prosecutions.
Consent from the Director of Public Prosecutions will only be forthcoming
if the prosecutor can demonstrate that the public interest will be served
for the application to proceed, that the re-trial would not be inconsistent
with the United Kingdoms obligations as a Member of the EU under Article
31 or 34 of the Treaty on EU relating to the principle of ne bis in idem and
that there is new and compelling evidence against the acquitted person in
relation to the qualifying offence. The public interest requirement, for ex-
ample, is unlikely to be met under Section 79, if there has been substantial
media coverage of the incident, which is likely to make a fair trial less than
probable, and the relative length in period between the alleged commis-
sion of the offence and the prospective re-trial is deemed to be excessive.
Other considerations which may be relevant when determining the public
interest issue will include the likelihood of the investigating officer or pros-
ecutor adducing the new evidence during the earlier proceedings had they
in any sexual activity with a child, which if done in New Zealand would be
a crime. Additionally, under Section 144C of the 1961 Act, it is also an
offence to assist or encourage others to travel overseas for the purpose of
having sex with minors or to promote sex tours. Prohibited acts would now
extend to booking tickets and reserving accommodation, organising trans-
port to overseas destinations and producing advertising and promotional
literature relating to child sex tours. Recently, a New Zealand national was
found to have engaged in these activities and was prosecuted for facilitating
CST (OCEANZ, 2010). The activities of the accused were subject to an under-
cover operation by the Police Online Child Exploitation across New Zealand
(OCEANZ) unit. Sex tourism is a subset of a more general global problem of
human trafficking (Meredith, 2010). Human trafficking of minors has been
a long-standing issue (ECPAT, 2008). It has been described as a modern
phenomenon with ancient roots (King, 2008: 369). It is beyond the scope
of this chapter to undertake an examination of this area of child protection
save for one example, which can be provided to illustrate the transborder
issues resulting from the interaction between human trafficking and sex
tourism. 230.25 of New Yorks anti-trafficking legislation, for example,
holds businesses to account if they provide travel-related services knowing
that such services include or are intended to facilitate travel for the purpose
of patronizing a prostitute, including to a foreign jurisdiction and regardless
of the legality of prostitution in said foreign jurisdiction. In People v Barabash
(2006), the accused operated a tourism services business in New York under
the name of Big Apple Oriental Tours (BAOT). Trips to Philippines were pro-
vided and tour guides were procured to bring the tourists to venues where
women were available to have sex for money. Evidence was offered showing
that the tour guides provided the tourists with specific instructions on how
to engage in sexual activity with women for money. More importantly, the
price of the package tour included the costs for having sex. These sums of
money were alleged to have been forwarded to tour guides in the Philippines
so that the women who engaged in sexual activity with the tourists con-
cerned were paid for the services rendered. The absence of evidence proving
the complicity of the proprietors proved to be fatal to the prosecution for
this specific offence. Finally, two additional examples of extraterritorial le-
gislation which reflect governments attempts to punish those engaged in
abusing children through sexual exploitation can be provided. These are
Section 7(4.1) of Criminal Code in Canada and the United States PROTECT
Act 2003. Parts of the PROTECT Act 2003 incorporate the obligations under
the Optional Protocol (18 USC 24223) which was acknowledged to be
the case in US v Frank (2007). The PROTECT Act 2003 does not apply retro-
spectively, as was noted by the court in US v Jackson (2007). In US v Bianchi
(2010), the offender was prosecuted under 18 USC 2423(c) for engaging in
illicit sexual conduct in Moldova. The offender in this case engaged in the
practice of travelling to foreign destinations with the aim of meeting and
attributed in part to the lack of visibility (as the offences take place abroad)
(Cotter, 2009). NGOs ascribe the low prosecution rate to the lack of pri-
ority given by States to the commercial and sexual exploitation of children
from less developed economies, in particular to the growing problem of
CST (Beaulieu, 2008; Healy, 1995). Not surprisingly, public policy concerns
about the CSEC continue to be expressed with growing regularity in na-
tional and regional child protection forums (West, 2000). In a published
report, ECPAT regarded the lack of progress made in protecting vulner-
able children from its citizens a national shame (2006: 8). At the inter-
national expert meeting on combating CST it was noted that [v]ery few
child sex tourists are arrested, tried and sentenced (ECPAT, 2009: 1). The
visibility and detection challenges may be compounded by individuals
meeting up with minors in the most innocuous of venues like public areas,
hotel lobbies or the homes of the child victims (ECPAT, 2008). Even if in-
formation relating to the nationality of the individual has been obtained,
the lack of awareness by the general public of the mechanisms for report-
ing suspicions of criminal activity engaged in by foreign travellers and the
lack of trained law enforcement authority in these countries hinder proper
investigation and prosecution of child sexual exploitation offenders (High,
2005). For example, offenders have been known to work as volunteers in
developing countries assisting in education, health and other care projects,
as a way of evading detection by authorities. In US v Perlitz (2010) the of-
fender worked as a volunteer to assist street children and concealed his
activities from staff at the organisation for over a decade.
Some efforts have been made by destination countries to deal with
the problem of sex tourism. Countries like Thailand, Vietnam, Laos and
Sri Lanka have implemented regulatory measures criminalising CST and
human trafficking activities. Even though Thailand does not have spe-
cific legislation dealing with CST offences, some enactments passed by the
legislators do criminalise activities that come within the sphere of CSEC.
For example, the Measures in Prevention and Suppression of Trafficking in
Women and Children Act, BE 2540 (1997), now provide law enforcement
greater investigation powers to curb offences relating to human trafficking
of women and children (Section 5). Under Section 7 of the Prevention and
Suppression of Prostitution Act, B.E. 2539 (1996), any person or entity found
to have advertised or make known to the general public in a manner appar-
ently indicative of importunity or solicitation for the prostitution of him-
self, herself or another person can be imprisoned for a maximum of two
years. Section 10 also subjects parents or persons who have responsibility
for a minor below the age of 18 years to criminal prosecution for conniving
in the child sex offences under Section 9. Prostitution and human traffick-
ing, particularly involving children below 18 years, are criminalised in Laos
(Articles 1314). In Vietnam, legislation has been passed amending provi-
sions in its Penal Code (No-37/2009/QIII2). Article 115 criminalises sexual
activity with children below the age of 16. The amended Article 119 now
criminalises trafficking in humans and Article 120, clause 2, is replaced
with against more than one child. Finally, in Sri Lanka, the Penal Code
(Amendment) Act, No. 16 of 2006, inserted some important provisions into
its legislation, notably Sections 360E (soliciting a minor below the age of 18
years) and 360C (trafficking).
Given the complexity of gathering relevant information, governments
have begun to work closely with NGOs and child welfare organisations in
foreign destinations. ECPAT continues to play an invaluable role in policing
destinations frequented by individuals engaged in CST, and undertakes edu-
cation and awareness-raising programmes and lobbying initiatives (ECPAT,
2010: 605). It has also established invaluable networks with law enforce-
ment authorities from various countries like Australia, the United Kingdom,
Canada, France, and the United States. In addition to detecting and iden-
tifying child sexual abuse activity in countries like Bangkok, Cambodia,
and regions in Eastern Europe and South America, the decision to charge
and prosecute a national in the country of residence is not as straightfor-
ward as might initially appear. One should not, for example, underestimate
the difficulties in obtaining relevant and credible evidence that satisfies the
rules on admissibility in countries like the United States and the United
Kingdom. Law enforcement in countries where the victim resides may not
have the resources or possess the skills or expertise in dealing with incidents
of child sexual abuse. The gathering of physical and medical evidence of
victims after the abuse may also be a problem if there are inadequate facil-
ities and insufficiently trained personnel. Cultural and economic factors
may also affect decisions to prosecute. Family members may be reluctant
to provide evidence incriminating the offender or may have been complicit
in the commercial sexual exploitation of the child (Garrard, 2006). Victims
who are subject to sexual abuse and exploitation by foreign nationals may
not come forward to give evidence against the offenders for fear of repris-
als (US v Bianchi (2007)). Rules on hearsay and the thresholds regarding the
types of evidence that may be received by the court have implications for
decisions to prosecute. Another potential barrier to prosecuting individuals
for engaging in CSEC is the requirement that the victim provide testimony
in person either by attendance at the trial or through a live video link.
Finally, without cooperation from the relevant authorities in the destin-
ation country, gathering relevant evidence and witnesses can impose con-
siderable logistical challenges in terms of time, expertise and resources. In
relation to the United Kingdom, the advice given by the CPS to prosecutors
and investigators in the United Kingdom is that on receipt of the report of
alleged child sex offences committed by UK nationals in the destination
country, law enforcement should arrange with their counterparts to ascer-
tain the best course of action (CPS, 2009). Where multi-jurisdictional ele-
ments are found to be present there may be practical reasons for not having
the ECPAT report (Beaulieu, 2008) has been overtaken by some positive le-
gislative developments, the central concerns about enforcing child protec-
tion laws in foreign jurisdictions against nationals of the home country are
still relevant; more specifically, governments could do more to curb, deter
and prosecute their nationals for exploiting and sexually abusing minors. It
is important for destination countries which have a thriving sex tourism in-
dustry to enact legislation that defines the scope of sexual offences against
children and to support law enforcement efforts in investigating and pros-
ecuting offenders. CSEC still continues to be a problem in many tourist
destinations. For example, NGOs claimed that resorts in Sri Lanka continue
to attract both locals and tourists (US Dept of State, 2010a). Lack of fund-
ing in raising awareness is seen as contributing to the exploitation of chil-
dren for sex in the country. It was suggested that South Africa was proving
a popular destination for individuals seeking sexual activity with minors
(US Dept of State, 2010b). This claim has been denied by the South African
government. Russia too has been identified as a destination for sex tourism
(US Dept of State, 2010c). Finally, sex tourism has been a particular problem
for emerging tourist destinations like Madagascar (US Dept of State, 2010d).
The growth of the tourism industry and the impact of the financial and eco-
nomic crises on nationals have been seen as contributing to the problem of
sex tourism in this country (US Dept of Labor, 2009).
In view of some of the jurisdictional constraints facing law enforcement
in prosecuting transborder crimes, there has been a noticeable trend in the
development of regional and international policing and information sharing
networks (see later discussion in this chapter). For example, law enforcement
agencies increasingly rely on covert operations to identify and investigate
nationals suspected of engaging in the practice of CST. The US Immigration
and Customs Enforcement Agency (ICE), for example, continues to expend
its efforts in prosecuting US citizens engaged in sexual activity with minors
in countries in the Far East like Thailand and Cambodia. ICE coordinates
its investigations from its office in Seattle, which has links to the agen-
cys offices in Bangkok and the Cambodian National Police, Anti-Human
Trafficking and Child Protection unit. Much of its powers are derived from
the PROTECT Act 2003, which enables the agency to enforce Federal Laws
safeguarding children in overseas countries from the sexual predatory activ-
ities of US citizens. The Trafficking Victims Protection Act in 2000 also pro-
vides an additional set of provisions, which can be used to deal with child sex
trafficking. In the Operation named Twisted Traveler, information provided
to ICE law enforcement authorities by NGOs and the Cambodian govern-
ment led to three Americans being arrested for engaging in sexual activity
with minors in Cambodia (FBI, 2009). Two hundred suspected paedophiles
were arrested by the Australian Federal Police (AFP) following a three-year
investigation, which involved collaboration with national law enforcement
agencies like CEOP, ICE, the European Police Office (EUROPOL) and the
Extradition
Extradition is the process whereby a person is surrendered to a requesting
State for criminal prosecution (Ayaz v Italy (2010)). In New Zealand v Johnston
(2011), the court reiterated the point that extradition hearings are not con-
cerned with the merits of the case against the person against whom the re-
quest for release has been made. Individuals can be extradited from foreign
countries on the basis of an agreement reached between the two countries
following a request to transfer the accused so as to enable the individual to be
prosecuted in the national court. In US v Clark (2006), the offender was found
to have engaged in sexual activities with minors in Cambodia. His activities
were investigated by an NGO Action Pour Les Enfants whose role is to
rescue children who have been sexually exploited by non-Cambodians. The
Cambodian National Police investigated the complaint made by the NGO
and subsequently charged him. The US government had the offender extra-
dited after the Cambodian government acceded to the request. In Ayaz (2010)
the court rejected the accuseds appeal against his extradition to the request-
ing State (Italy) for child sex offences deemed to have taken place in Italy.
The court held that his extradition did not violate the double jeopardy rule,
since the European Arrest Warrant (EAW) did not cover the type of conduct
for which he was originally sentenced in the United Kingdom. Extradition
procedures within the EU have been speeded up with the introduction of
the EAW (Herlin-Karnell, 2010: 82435). The EAW was introduced by the
Framework Decision and incorporated into UK law when the Extradition Act
2003 came into force at the beginning of 2004 (Council of the European
Union, 2004a,b). A request to have a suspect or accused extradited from a
Member State will follow if the competent judicial authority concludes at
the extradition hearing that the offence for which the EAW has been issued
relates to an extraditable offence, that the bars to extradition are not pre-
sent and that the extradition does not violate the individuals rights under
the ECHR (Iwinski v Poland (2011); R (on the application of HH) v Westminster
City Magistrates Court (2011)). One additional matter is worth raising here.
Framework Decision, 2002/584/JHA, replaces the application of the double
criminality rule with regard to the offence of sexual exploitation of children
Conclusion
It is possible to identify the principles applicable to a State's exercise of its
jurisdictional authority. First, States have jurisdiction over criminal acts tak-
ing place within their territory. This jurisdiction extends to criminal acts of
foreign nationals within its territory. Second, States have jurisdiction over
its nationals. Third, where a crime has a transborder element, more than
one State may have jurisdiction over the event in question. Consequently,
the presumptive rule in many national legal systems is that its criminal
jurisdiction will not have extraterritorial application unless there are spe-
cific provisions, which permit courts to assert jurisdiction over activities
that take place beyond the geographical boundaries (Section 72 of the SOA
2003).
risks of detection and accountability (Wall, 2007: 11926). Indeed, the scale
of the deviant activity cannot be disassociated from the fact that Web 2.0
technologies now make available to individuals opportunities to explore pri-
vately their sexual desires without fear of being detected by national law en-
forcement authorities (Quayle et al., 2002). Additionally, there are numerous
ways of concealing online identities and engaging in criminal activities (e.g.
registering domain names with false information, encryption, anonymisa-
tion tools and services, providing false details when setting up accounts on
social networking sites). Another governance concern is the increased use by
criminal organisations of the Internet to share illegal content and support
child sexual abuse activities. The media spotlight on the discovery of the
global child pornography network following Operation Cathedral and the
prosecution of its members illustrate that information security governance
is an ongoing process. This investigation involved the efforts of High Tech
Units in tracking the activities of individuals from 14 countries engaged in
child pornography. The W0nderland Clubs activities were highly organ-
ised and the groups leaders vetted membership into this group. The servers
which were used by the group were frequently moved to avoid detection by
law enforcement, and the leadership was clearly well versed with adopting
state-of-the-art encryption and security protocols. Identifying the demand
and supply channels in the Internet is a complex, resource-intensive process
(Baartz, 2008; Grabosky, 2007a). The IWF in its recent report highlighted
the growing demand for child sexual abuse content from a global audience
(IWF, 2010b). In one instance a website which briefly hosted child sexual
abuse content (before being taken down) received requests from 25,000 in-
dividual IP addresses worldwide. These requests were also received from mo-
bile Internet accounts and gaming platforms.
Time to re-think the traditional law enforcement model?
In the light of what has been discussed it is apparent that the commer-
cial sexual exploitation offences mediated through decentralised networks
and electronic media require regulatory responses which effectively address
the nuances of technology-mediated criminal activity (Dandurand et al.,
2007). It has been suggested that crimes mediated through technology have
exposed the limitations of current crime control strategies. Unlike offline
crimes, online criminal activity has a number of features that raise poten-
tial barriers to investigation and prosecution (Brenner, 2004). Brenner iden-
tifies three features which render regulating online criminal activity more
problematic (2010: 3947). First, the offender and victim are unlikely to be
present in the same physical space and time. For example, many of the off-
line sexual crimes against children require the offender and the victim to
be within proximity of each other. Second, cybercrimes may involve mul-
tiple offenders engaging in child sexual exploitation offences from multiple
venues and using varied communication platforms. Child pornography
rings have been known to provide live web streaming shows of children
being sexually exploited to a global audience, whilst facilitating private on-
line bulletin boards and chat rooms. Third, online criminal activity does
not display the physical cues that define much of regular offline criminal
activity.
stick and other digital portable storage devices. When commercial sexual
exploitation activities are reported, the decision to prosecute and even the
ability to prosecute will be influenced by three factors: relevant legislative
authority; availability of evidence and intelligence sharing. In some respects
the online environment creates digital trails which are particularly use-
ful for law enforcement when investigating child sexual exploitation inci-
dents. Some of the investigative techniques used to bring offenders before
the courts are nothing more than good examples of law enforcement adopt-
ing appropriate investigation strategies, networking and coordination with
other national policing agencies or organisations (see below). In R v Collins
(2011) the offender was traced via the telephone which was used to access the
website for the National Society for the Prevention of Cruelty to Children.
In R v Parnell (2004) the accused was convicted of the crimes of attempted
incitement to commit buggery, and attempted incitement to an act of gross
indecency with a male under the age of 16. Unknown to the accused, the Sri
Lankan authorities had intercepted his email. On his return to England, the
accused was arrested and prosecuted under Section 2 of the Sexual Offences
(Conspiracy and Incitement) Act 1996.
Policing networks
INTERPOL
This organisation has as its mission the prevention or combating of inter-
national crime by facilitating cross-border police cooperation, and supports
and assists all organisations, authorities and services.1 As part of its work, the
International Criminal Police Organisation (INTERPOL) assists law enforce-
ment in investigating and prosecuting individuals and organisations for
crimes against children. One important contribution made by INTERPOL is
the provision of trained investigators with access to the International Child
Sexual Exploitation image database (ICSE DB) via a secure communication
network. The database is funded by the European Commission and has
received the backing of the G8. The INTERPOL Child Abuse Image Database
(ICAID) was created in 2001 and now has over 520,000 images submitted by
36 Member States. Two examples can be provided to highlight the value of
the database and information sharing policies as effective child protection
measures. The first concerns two young girls, aged 9 and 11 years, who were
sexually abused and filmed. A video of the abuse was found in Australia,
where authorities requested the assistance of the INTERPOL General
Secretariat to identify the language spoken and hence possibly the location
of the victims. Following a lengthy investigation coordinated by INTERPOL,
the child victims were located in Belgium and rescued. Their father and the
abuser were subsequently arrested. The individual filming the abuse was
traced to Italy and subsequently arrested. The second involves an investi-
gation undertaken by a Canadian police officer who discovered a number
CIRCAMP
Apart from INTERPOL, COSPOL Internet Related Child Abuse Material
Project (CIRCAMP) provides invaluable organisational support to law en-
forcement authorities investigating online child sexual exploitation.2 The
overall aim of the CIRCAMP network is to combine the resources of and im-
prove coordination between law enforcement agencies in Europe. According
to CIRCAMP, eleven Member States (Norway, Belgium, Denmark, Finland,
France, Ireland, Malta, Spain, Sweden, Netherlands, UK) are now taking part
in a law enforcement project aimed at preventing access to child sexual abuse
material. CIRCAMP also cooperates and shares information with non-EU
Member States and these now include Switzerland and New Zealand.
EUROPOL
EUROPOL is another organisation which supports law enforcement agen-
cies in the EU Member States.3 As criminals become more organised and
skilled in evading detection by law enforcement through the use of sophis-
ticated technologies and payment mechanisms, EUROPOL aims to support
law enforcement agencies in Member States by providing intelligence ana-
lysis, by training of law enforcement and facilitating information sharing.
A number of its services are directly relevant to enhancing the effectiveness
of national law enforcement agencies in relation to CSEC. For example,
to ensure that law enforcement and judges have the requisite skills and
knowledge, EUROPOL organises an annual training course Combating the
Sexual Exploitation of Children on the Internet focusing on the legal, in-
vestigatory and evidentiary issues in this regard. This training course is also
made available to law enforcement agencies around the world. It is envis-
aged that by creating such a forum, greater awareness and understanding of
the investigation and enforcement strategies to address technology-enabled
crimes can be promoted, investigators can share their experiences and prac-
tices and networks for ongoing and future collaboration and coordination
of law enforcement efforts can be improved. Since 2001, EUROPOL has
used the Analytical Work File (AWF) to support investigations undertaken
by Member States in dealing with criminal activity relating to the sexual
exploitation of children. In 2007, the AWF was used to coordinate and sup-
port investigations undertaken under Operation Koala, which involved 29
countries within and outside the EU. Over 400 suspects were identified,
and from the resulting investigation around 100 child sex offenders were
VGT
The Virtual Global Taskforce (VGT) comprises national law enforcement agen-
cies coordinating their resources and intelligence to protect children from
online child abuse.4 The VGT was set up in 2003 to deal with the global rise of
online child sexual exploitation activity. The current membership of the VGT
include EUROPOL, the AFP, CEOP, the Italian Postal and Communication
Police Service, the Royal Canadian Mounted Police, the US Department of
Homeland Security, INTERPOL, the Ministry of Interior for the United Arab
Emirates and New Zealand Police. The VGT enables investigations to be better
coordinated and facilitates information sharing at regional and international
levels. To date more than 200 commercial child sexual abuse websites have
been dismantled. The VGT engaged in an international investigation known
as Operation Basket. It commenced investigations as far back as 2006 follow-
ing intelligence provided by the United States Immigration and Customs
Enforcement investigation. An important part of the investigation involved
the identification of the criminal organisation coordinating the commer-
cial exploitation of online child sexual abuse content. During the course of
the investigation over 30,000 customers from 132 countries were identified.
Law enforcement authorities around the world including the Netherlands,
Germany, the Czech Republic, Belarus and Italy collaborated with the VGT. In
addition to engaging with law enforcement activity, the VGT now works with
over 96 countries to assist them in drafting UNCRC compliant laws.
CEOP
CEOP, the UK law enforcement agency, continues lead child safety issues in
the United Kingdom. It recently reported the dismantling of a paedophile
network on the social networking site Facebook (CEOP, 2010b). The UK na-
tional, Ian Green, was the subject of an international operation known as
Operation Ocean. The High Tech Operations Unit of the AFP provided CEOP
with intelligence regarding the activities of an individual in the United
FCACP
Increasingly, law enforcement has expanded its investigation strategies by
engaging with the banking sector and online intermediaries to disrupt the
misuse of Web 2.0 technologies for commercial and sexual exploitation of
children activities. In recent years, the Financial Coalition against Child
Pornography (FCACP), comprising major banks, credit card companies,
electronic payment networks, third-party payments companies, and online
services companies, have provided invaluable support to law enforcement
efforts in disrupting the growing commercial child sexual exploitation
In the light of the above discussion, it is not entirely clear whether reforms
of the principles applicable to extraterritorial criminal jurisdiction will have
a significant impact, when compared with, for example, efforts directed to-
wards funding and supporting current governance measures like informa-
tion sharing, promoting collaboration between NGOs, law enforcement and
the financial sector, and assisting communities and ethnic minorities who
are particularly vulnerable to commercial and sexual exploitation. In view
of the benefits in creating a safer online environment for children through
greater cooperation and collaboration between law enforcement agencies
and prosecuting authorities nationally, regionally and globally, there is an
emerging view that national efforts to secure compliance with child pro-
tection laws would be better served by countries subscribing to a global
treaty (Dandurand, et al., 2007). These views are now being canvassed in
different forums. At the Twelfth UN Congress on Crime Prevention and
Criminal Justice a working paper prepared by the Secretariat explored
the possibility of establishing a global convention on cybercrime.8 Some
Conclusion
Overview
192
compliance with their obligations under the UNCRC (CRC, 2003: paragraph
1). First, when implementing the measures necessary for the realisation of
the rights, a State is required at the first instance to engage with all stake-
holders, including children. During this period of engagement, not only
has the State to seek the views of the stakeholders, but it is also required to
demonstrate that its domestic legislation is compatible with both the let-
ter and the spirit of the UNCRC and, more crucially, that these rules are
being appropriately enforced. Second, when States submit their reports to
the CRC, there is an expectation that the actions taken to comply with the
UNCRC are clearly described and evidenced. The forms of evidence that can
be offered include measures like campaigns and educational programmes
which raise childrens and the publics awareness of the UNCRC, dissemin-
ating the deliberations of the CRC and its Reports widely within the State,
designating budgets and resources to establish childrens representative
groups and centres, creating opportunities for childrens participation in
policymaking and giving due weight to their views and concerns, enacting
legislation which enables childrens interests to be taken into account (i.e.
health and education) and integrating child impact assessments into any le-
gislative, policy or budgetary decisions. For example, the setting up of youth
panels in online child safety policymaking is one illustration of the role of
the SIP in embedding UNCRC standards and values amongst its Member
States. Clearly, since many of the online child safety policies, for example,
impact children, it is only right that they should have a say in the measures
adopted to enhance their safety. By subjecting States to scrutiny from the
CRC and, indirectly, to the electorate, it is also felt that greater awareness
and understanding of UNCRC obligations will in itself provide States with
the necessary incentive to be seen to be complying with its undertakings.
The CRC also plays an important role in entering into a dialogue with the
State during the reporting process by highlighting areas of good practice as
well as recommending areas where specific attention is required.
It is encouraging to find that States have generally been responsive to the
recommendations made by the CRC. Some illustrations can be provided by
way of conclusion to the discussion on the work of the CRC. For example,
following the dialogue during the consideration of the periodic reports, the
United Kingdom informed the CRC that it would be withdrawing its reser-
vations to Articles 22 and 37(c) of the Convention and indicated that it also
planned to ratify the Optional Protocol before the end of 2008 (CRC, 2008a).
The Optional Protocol was in effect ratified on 20 February 2009. The CRC
has previously indicated in its Concluding Observations based on the reports
submitted by the United Kingdom and Northern Ireland that the principle
of the best interests of the child was not being adequately reflected in all
legislative and policy matters affecting children, especially in the area of
juvenile justice, immigration and freedom of movement and peaceful as-
sembly (CRC, 2008b). The then government responded by making available
on its website its views regarding the steps to be taken in response to the
Committees conclusions. During this meeting, broader issues regarding the
governments commitment were also addressed together with the problem
of medias negative portrayal of children. The CRC also took the oppor-
tunity to make clear that welfare and best interest were not synonymous
(CRC, 2008b: paragraph 23). In its 49th Report the CRC reiterated the need
for the United Kingdom to ratify the CPC Convention, and increase efforts
towards integrating the best interests of the child principle in all legislative
and policy matters affecting children, especially in the area of juvenile
justice, immigration and freedom of movement and peaceful assembly
(CRC, 2010: 64). Even though the recommendations have no legal force,
States continue to implement the measures proposed by the CRC. Australia,
for example, amended its Criminal Code by inserting new child pornog-
raphy and child abuse offences. The new offences now ensure that individu-
als using the Internet to access, transmit, or produce illegal content with the
intention of placing it on the Internet will now be prosecuted (CRC, 2005b:
97). After welcoming the efforts made by the State, the CRC also drew atten-
tion to its concerns about the exposure of children to violence, racism and
pornography, especially through the Internet (CRC, 2005a: paragraph 33).
Concrete recommendations made by the CRC assist States in guiding their
implementation strategies. In response to the recommendations made by
the CRC, ACMA initiated a series of studies and policy reviews aimed at pro-
moting greater awareness of online safety issues and policies (e.g. filtering,
media literacy and redress mechanisms) (ACMA, 2009b,c,d). Indeed, we see
not dissimilar strategies being pursued by policymakers in the United States,
Canada, the United Kingdom and other Member States in the EU in review-
ing national legislation and MSIG strategies. Additionally, following the
assurances given to the CRC regarding Australias accession and ratification
to the Optional Protocol, the government fulfilled its undertaking on 8
January 2007 (2005a: paragraph 789). We should also note the role of the
Special Rapporteur on the sale of children, child prostitution and child
pornography in making visible the issues meriting the attention of policy-
makers. The Special Rapporteurs mandate is to investigate the exploitation
of children around the world and to submit reports to the General Assembly
and the Commission on Human Rights. The Human Rights Council (HRC)
passed a resolution providing the Special Rapporteur with an additional
mandate to analyse the cultural and economic factors contributing to
CSEC, to identify and promote best practices in combating this problem
(HRC, 2007). In 2004, the then Special Rapporteur drew the attention of
the General Assembly and the Commission on Human Rights to the scale
of the prevalence of child pornography materials on the Internet and the
lack of legislation dealing with this type of material, which prompted con-
certed international efforts to address the growing problem of CSEC
(Commission on Human Rights, 2004). The Special Rapporteur also
highlighted the important role of the CRC, when examining the reports
submitted by governments on the implementation of the Optional Protocol;
particular reference was made to its role in promoting a common under-
standing of the definition of pornography so that all signatories could ad-
here to common standards and principles (Commission on Human Rights,
2004: paragraph 119). Whilst there is a lack of consistency in the legal def-
inition of child pornography or variance in the age for consenting to
sexual activity, many of the concerns regarding the contact and content
risks are gradually being addressed at national and regional platforms (2004:
paragraphs 1229). Anyone engaged in the creation, distribution and pos-
session of child abuse material would be prosecuted (European Commission,
2010e, 2011b). A number of States have in place legislation that criminalises
online sexual solicitation of minors. ISPs have developed monitoring and
information sharing practices designed to reduce online access to illegal
content. We also have specialised law enforcement units that deal with on-
line safety and security. There are, however, areas identified by the Special
Rapporteur which still require ongoing international consensus and collab-
oration (e.g. age of the child, criminalising possession of pseudo-child
abuse images and defining the scope of child pornography). Additionally,
the efforts to disrupt the supply and demand for CSEC continue to be a con-
cern (ECPAT, 2009). In 2006, the Special Rapporteur noted that there was a
need for governments and policymakers to develop effective preventative
strategies which targeted the demand for CSEC (Commission on Human
Rights, 2006). This is a difficult area of governance, and the eradication of
demand has been described as a complex and multifaceted phenomenon
(ibid., 2006: paragraph 119). We have previously discussed some of the gov-
ernance responses with regard to CSEC but the findings continue to be rele-
vant to online child safety governance even to this day (ibid., 2006:
paragraph 122). Whilst empowerment can lead to a reduction of CSEC, in
many cases their eradication continues to be problem since the conditions
which enable the demand to be met are deeply rooted in social structures of
poverty, social inequality, armed conflict and even forced economic migra-
tion (ibid., 2006: 121). In 2009, the Special Rapporteur focused on the
prevalence of child abuse images in the online environment (HRC, 2009a).
The report reinforces many of the recommendations set out by the previous
Special Rapporteur and those produced by World Congresses on CSEC.
Significant differences in the definition of a child and child pornog-
raphy were seen as hampering law enforcement efforts in prosecuting
offenders. Some countries regarded the age of consent to sexual activity as
defining the boundary between child pornography and those which were
not (ibid., 2009a: paragraph 55). A number of countries did not have legis-
lation that addressed virtual pornography or did not distinguish between
erotica and child pornography (ibid., 2009a: 567). There are obvious limits
to these fact-finding missions. In a report submitted to the HRC, the Special
were hampered by the lack of a coherent plan and adequate funding (CRC,
2009). The State was encouraged to work closely in partnership with the
tourism industry, NGOs and civil society organisations (ibid., 2009: 63). It
was also observed by the CRC that there were inadequate steps taken by the
State in raising the awareness of the general public and engaging with chil-
dren in relation to their awareness and understanding of the risks posed by
the Internet and other mobile communication technologies (ibid.).
To conclude, it suffices to acknowledge the extent of the obligations States
voluntarily assume by subscribing to international obligations like those in
the Optional Protocol and UNCRC and their willingness to engage with the
CRC in adapting their legal and social infrastructures accordingly.
Some of the findings in the study resonate with the issues covered in this
book. First, that the Internet and communication technologies increased
childrens exposure to risk of sexual exploitation and abuse from peers and
adults (UN Secretary General, 2006: paragraph 80). Second, that new tech-
nologies make sex tourism both accessible and affordable to an unpre-
cedented audience in a scale and level never experienced (UN Secretary
General, 2006: paragraph 77). Third, that the mass media contributes to
childrens exposure to risks of sexual exploitation since they sometimes
portray as normal or glorify violence, including violence against children,
in print and visual media including television programmes, films and video
games (UN Secretary General, 2006: paragraph 80). The Secretary-General
recommended that countries continue in their efforts to combat the use of
the Internet and communication technologies in the sexual exploitation
and abuse of children and peer victimisation, engage parents, carers and
children in media literacy and awareness-raising initiatives, encourage in-
dustry to promote design and standard setting efforts for child protection
and increase the deterrence and punitive role of criminal laws (ibid., 2006:
paragraph 114).
The above account of the role of the UN demonstrates the enormity of
the online child safety governance challenge and the critical need for a
MSIG strategy in responding to the many risks and threats encountered by
children. It is not unreasonable to conclude that the UN regards its role as
elevating the need for policy responses in promoting child welfare and de-
velopment. Its institutional processes and agencies continue to encourage
and support governments in their efforts to strengthen and promote chil-
drens rights. Within the context of online child safety policymaking, the
EU and the Council of Europe have been instrumental in efforts to main-
stream childrens rights and child protection matters. A summary of these
efforts will now be provided.
One provision that remains to be addressed is Article 21, which deals with
content regulation mechanisms. This Article as presently drafted is hardly
a model of clarity. The Explanatory Note states, however, that where
Member States are unable to remove the webpages they need only take the
necessary measures, which can include non-legislative steps. Countries like
Belgium, Finland, Ireland and the United Kingdom, for example, adopt a
voluntary filtering scheme. With regard to the United Kingdom, reports
from the public regarding websites hosting child abuse content are passed
to the IWF. If the IWF views the content as illegal, it makes a request to the
ISP to have the page blocked to users in the United Kingdom. There are ju-
dicial safeguards built into the orders granted to block websites suspected
of hosting or disseminating child pornography. Attempts in the United
States to impose a mandatory filtering or blocking obligation have been
challenged on constitutional grounds. In Australia, there is a co-regulatory
model governing filtering and blocking. Schedule 5 of the Broadcasting
Services Act 1992 and the Internet Industry Codes of Practice define the
measures ISPs are expected to implement to protect the general public
from illegal content. There is an opt-in filtering framework. ACMA can
require a content service provider or ISP to remove or block access to pro-
hibited content. It is worth recalling that the previous Council Framework
Decision regarded Member States as having direct responsibility for imple-
menting substantive and procedural rules regarding access to illegal con-
tent (Council of the European Union, 2004b). No reference was made to
the obligations of Member States for direct intervention in blocking il-
legal content like child pornography. The Working Party on Substantive
Criminal Law has previously called for a proportionate response on this
issue (Council of the European Union, 2001: 3). At the first Working Group
meeting, a number of Member States expressed reservations regarding their
obligation to impose blocking measures. As a result of the meeting, the
European Parliament proposed an amendment to the Council text which
attempts to diffuse some of the political and ideological controversy (EDRI,
2011). Reference should also be made to the observation made by Advocate
General Cruz Villaln in Scarlet Extended v Socit belge des auteurs composi-
teurs et diteurs (Sabam) (2011) that the deployment of mandatory filtering
measures could arguably encroach into users expectation of privacy to
their communications and protection of personal data which are protected
under the Charter of Fundamental Rights. This aside, the SIP aims to in-
crease communities and stakeholders understanding and awareness of
responsibilities for enhancing childrens online safety. Two examples can
be provided. First, the Safer Internet Forum, for example, is an annual con-
ference organised under the SIP. Some of the topics covered in the annual
conference over the years included promoting online safety in schools,
addressing the impact of convergence and online sexual abuse, sharing
industry practices relating to the use of labelling and age-verification tools
and developing safety strategies on social network sites. Second, the EU
has continued to support the Safer Internet Day campaign since its incep-
tion in 2004. This campaign is seen as an awareness raising opportunity
for children, parents, educators and society generally (INSAFE, 2009, EU
SIP, 2009). Many of the aims to be achieved by promoting these initiatives
complement other measures developed by the EU (e.g. promoting safer use
of online technologies, increasing public awareness of risks and precau-
tions and reducing the amount of illegal content being distributed online).
The recent SIP efforts include targeting potentially harmful conduct like
peer victimisation and grooming. Finally, policymakers also recognise
that children and their parents should be integrated into the MSIG frame-
work. Media literacy and education campaigns are increasingly directed at
assisting these groups of individuals (see later discussion on media literacy
in Chapter 7).
Council of Europe
Conclusion
An overview
220
Preliminary observations
There is at least at one level a noticeable desire amongst States and organisa-
tions to promote better rule making and governance in relation to childrens
exposure to potential risks and threats in the online environment. The policy
reviews undertaken in the United Kingdom, Australia, the United States and
Canada show an increasing willingness by States and international institu-
tions to promote greater collaboration and cooperation amongst the various
stakeholders (Hoffman, 2005). These developments may be explained in
terms of neo-liberal approaches to governance; others who take a pragmatic
outlook of transnational governance may be inclined to suggest that the
rhetoric of good governance and efficient rule making is a reflection of the
impact of globalisation on the ability of nation states to respond to domestic
public policy issues in an effective and timely manner (Hann et al., 1996: 1;
Long et al., 2009: 10722). Even though States are seen as the primary polit-
ical actors responsible for enacting regulations, it is generally acknowledged
that their ability to secure compliance with rules and laws has diminished
considerably over the past half century with the emergence of transnational
non-State actors (Hall et al., 2002). Some view the emergence of these trans-
national actors in global governance as an important aspect of democratisa-
tion (Bexell et al., 2010; Benkler, 2006). Others are a little more circumspect
and suggest that the diminution in the role of the State as perhaps tilting
the balance in favour of the private sector and its economic interests. That
said, the increasing role of civil society organisations in providing a coun-
tervailing force should not be underestimated (Schewick, 2010; Bexell et al.,
2010: 87; Beck, 2000; Baker et al., 2004). Hoffman, whilst accepting that
governance is a contested concept, regards the redistribution of the roles
and responsibilities between the State, the private sector and civil society
within the context of the Internet as an open-ended, collective process of
searching which aims to fill a global regulatory void both conceptually and
institutionally in a legitimate way (Hoffman, 2005: 2). Notwithstanding
these perspectives about governance, one thing is clear the erosion of the
boundaries between broadcasting, telecommunications and entertainment
poses us with some interesting insights into the way modernity brings into
play non-State actors and institutional structures, processes and options for
policymaking (Beck, 1997: 38; Golding, 2000; Porter, 2002).
The capitalist framework for wealth creation and its international institutions
provide an important backdrop to the way the Internet has now brought
into the public spotlight the risks, threats and uncertainties surrounding
childrens exposure to social media and technology (Beck, 1992a,b). The
opening up of online child safety policymaking to non-State actors is one
example of how governance frameworks increasingly provide platforms for
engagement with a wide range of stakeholders from the industry and civil
society (Giddens, 1990). Like Giddens, we can regard these developments as
indicative of a cultural attitude towards institutionalisation of the lifeworld.
He uses the term modernity in a very specific sense, and refers to
This description attaches emergent properties within the concept of civil so-
ciety, which can be usefully employed to depict the MSIG model for online
child safety. It can be used to describe the mobilisation of various stakehold-
ers into groups, from different parts of the world, each pursuing collective
goals and values. The emergence of civil society as a response to govern-
ance issues with a public interest dimension is not a modern phenomenon
(Becker, 1994). Its role in child protection is suggestive of an ideal type or-
ganisation comprising communities, volunteers and activists who are not
constrained territorially and have increasingly taken a leading role in ur-
ging policymakers and industry to comply with established legal, treaty and
convention obligations towards children (Beck, 1992a). Their increasing role
in the discourse on online child safety policymaking at domestic, regional
and supranational level provides an important counterpoint to the formal
political and legal responses to issues like the CSEC. Civil society has an
important role in terms of holding both governments and the private sector
to account as well as raising public awareness of the key issues and concerns
faced by children, parents and educators (ECPAT, 2008). One example of
a thriving civil society community can be seen in the range of delegates
from not-for-profit organisations participating in the WC III. It is probably
accurate to say that these organisations pursue collective goals, with their
raison dtre being defined by the normative foundations of human rights
conventions like the UNCRC and its two Optional Protocols. The European
NGO Alliance for Child Safety Online (eNASCO), which seamlessly weaves
17 childrens rights NGOs from across the EU into a network node working
for a safer online environment for children, is another example of civil so-
ciety being mobilised to advance childrens rights issues and policies. The
use of the concept of civil society does not imply that organisations coming
within this category have objectives that are fundamentally at odds with
those of the private sector or the State (Held, 1995). Indeed, the very nature
of a MSIG framework consisting of various State and non-State actors across
the spectrum of society suggests the existence of shared aims between the
participants (Dutton et al., 2007: 71). To be sure, we have already seen in
previous chapters the extent to which the State, civil society and the pri-
vate sector have complementary goals in relation to safeguarding children.
Consequently, the challenge for policymakers lies not only in coordinating
the activities but also in finding solutions to any resulting tensions that may
hinder the broad governance objectives in safeguarding children (Bexell et
al., 2010: 87). The integration of the FCACP into the MSIG framework can
be seen as a necessary strategy since other stakeholders are least able to dis-
rupt the financial channels which sustain the CSEC. From a multi-layered
governance perspective, it becomes imperative that policymakers determine
how best the roles and responsibilities of the stakeholders can be allocated
efficiently and fairly. We will consider later how some of these interactions
result in the convergence of governance strategies and responses (Beck, et
al., 1994). For the moment, we can turn to the significance of the institu-
tions of capitalism and internationalisation of institutions for civil society
participation and private sector engagement in online child safety policy-
making (Jobert et al., 2008).
wealth creation, which also leads to institutions and organisations now hav-
ing to manage the negative effects of network infrastructures and informa-
tion flows (Beck, 1992a). Castells provides us with a powerful example of
modernity, which chimes well with online child safety policymaking. He
observes the ever-increasing commoditisation of children as sexual objects
resulting from growing media coverage of child sexual abuse and exploit-
ation, the increasing poverty and the breakdown in family infrastructures
and the globalisation of markets for everything, and from everywhere to
everywhere, whether it be organized sex tours or audiovisual distribution
of pornographic material worldwide (Castells, 1998:160). Quayle, Loof and
Palmer highlight in their report that young adolescents are complicit in the
culture of commoditisation but through self-victimisation (Quayle et al.,
2008: 63). Techno-economic advances also create new channels for misuse
and risk distribution as seen in the case of R v Morelli (2010). The offender
was convicted for possession of child pornography contrary to Section
163.1(4) of the Criminal Code. What is particularly instructive, within the
context of Becks view of capitalist systems generating risks, is the offenders
use of new technologies and the Internet to create illegal content and le-
verage the communication platforms for CSEC (e.g. Usenet, websites, social
networking sites and file-sharing software programs) (FCACP, 2008). The
vignettes above demonstrate the complex risk milieu of modernity that is
now being replicated across deviant communities across the world. There
is in this sense a market for everything and everywhere (Castells, 1998:
150). Consequently, the resulting public anxieties have been mirrored in
a number of responses. NGOs continue to demand that the State and ICT
industry fulfil their social and moral obligations towards children. New
collaborations target the CSEC industry. The inclusion of the FCACP into
the MSIG is just the latest in a series of reflexive responses aiming to dis-
rupt the payment channels sustaining the CSEC industry. As reports point
to the growth in the child abuse images industry policymakers have also
increased their efforts in mobilising a global response to risk management
the harmonisation of rules protecting children from CSEC, use of policing
networks and industry engagement (OECD, 2008b, 2009; IWF, 2010b). The
traditional State-directed form of risk regulation has evolved to include
new governance arrangements, which emphasise deliberation, participa-
tion and frequent use of risk assessment strategies (European Commission,
2001b). One final observation can be made about the role of market rules
and norms in the production of risks. Risks are distributed unevenly and
another aspect of modernity is the measures and strategies developed to
reduce societal anxiety and fears. For example, the threats posed to chil-
dren with the growth of sex tourism and the rise in demand for child abuse
materials often involve victims from developing countries and those at the
lower end of socio-economic class structures (ECPAT, 2009). Indeed, as the
World Congress III reports from Rio illustrate, the growth of transnational
criminal activity, the emergence of deviant cultures, the rise of sex tourism
and child pornography serve as apt reminders of the invisible hand seek-
ing to impose its own perverse logic on societies, economies and individuals
least able to respond to the risks (ECPAT, 2008: 7681). The continuing im-
pact of Web 2.0 technologies on communities least able to address the risks
are uncertain, but the locations for future commercial exploitation are not
difficult to glean since
[b]y the year 2015, half of the worlds online population will reside in
two countries: China and India. The take up of digital technology in
Asia over the coming decade will be nothing short of dramatic. In all
probability, the growth of online commerce will follow a parallel trend.
This will provide unprecedented numbers of potential victims and pro-
spective offenders. (Grabosky, 2007b: 157)
There are three points to be noted with regard to the significance of techno-
logical innovations for evolving online child safety governance clusters.
First, the governance processes are embedded in the logic of capitalist sys-
tems of information flows and exchange. Economic objectives will be pur-
sued alongside social and cultural objectives (see Table 6.1).
Second, advances in communications can also lead to a creative de-
struction of governance strategies and measures. Third, since the risk
society creates winners and losers, responding to the threats becomes a
preoccupation of policymakers and organisations at national, regional and
Economic objectives
Promote and sustain competition and choice as a means of minimising price and
maximising quality of communications services.
Encourage investment and innovation.
Maximise the contribution of the communication sector to economic growth and
performance.
Efficient allocation of spectrum.
Social and cultural objectives
Affordable access to a universal service specified in terms of telephony,
broadcasting and Internet access
Plurality of voices in the media.
Cultural diversity and national identity reflected in content.
Consumer protection and privacy.
Source: OECD, 2004: 6.
Childrens
Media rights policy
Location Initiatives/organisations literacy advocacy
Childrens
Media Rights Policy
Location Initiatives/Organization Literacy Advocacy
The broad reach of the network of non-State actors is striking. Some rea-
sons can be provided for the emergence of non-State actors in this sphere of
governance. One explanation would be that the Internet has provided NGOs
with a new communicative space for engaging with a wide audience. The
policies and initiatives pursued by governments can be subject to increased
scrutiny, child safety information can be uploaded on websites and blogs and
information and ideas can be easily located through the use of search engines
and RSS services (Longford et al., 2007). The strategies adopted by civil society
and NGOs in disseminating their online child protection proposals have also
increased their visibility and presence (Nelson et al., 2008: 23, 27). NGOs
seek to frame their activities in terms of requiring the private sector and gov-
ernments to fulfil their legal and UNCRC or treaty commitments towards
children. Networking with major international human rights NGOs also
enhances their influence (Scholte, 2002; Bexell et al., 2010). The formation of
international alliances provides NGOs with the widest possible access to ex-
pertise, resources and audiences. NGOs continue to play an active role in the
online child safety consultation process. The Save the Children organisation
makes regular representations at national, regional and international sum-
mits. Childnet International, a UK-based charity, uses its domestic and inter-
national networks to promote public awareness of online safety issues and has
produced a number of education resources relating to peer victimisation. It
was also one of the first members of the UK Council for Child Internet Safety
(UKCCIS). Whilst Childnet has a domestic and regional presence, this organ-
isation has an international limb in its child advocacy activities. Childnet
has worked with ACMA and the Child Health Promotion Research Centre
(CHPRC) at the Edith Cowan University (ECU) in Perth in contributing to
online safety educational and awareness raising programmes for children. We
have already seen the positive response of civil society organisations and the
private sector in the SIP. These are trends which can be found replicated in
other jurisdictions (OSTWG, 2010; ACMA, 2009a,b,c). The Canadian Centre
for Child Protection (CCCP), which is a charity focused on promoting the
safety of children, has actively promoted public awareness activities and edu-
cation programmes on personal safety. It has two initiatives which involve col-
laboration with industry. For example, in partnership with TELUS, the Centre
created a website aimed at promoting parents and childrens awareness of the
potential risks accompanying the use of mobile phones and the steps that can
be taken to manage these risks or prevent them from arising in the first place.1
The website also has a mechanism through which mobile phone users can
report online sexual abuse to the national hotline Cybertip.ca. The Centre
has also worked with the Canadian Wireless Telecommunications Association
to create a website textED.ca aimed at educating children and young
persons about responsible use of texting technology. In the United States,
Congressional Hearings provide various stakeholders with an opportunity to
bring particular issues to the attention of legislators (US Senate Committee,
2010). The Joint Select Committee on Cyber-Safety of the 43rd Parliament
in Australia received 147 submissions from individuals and organisations on
a range of online security and safety issues affecting childrens use of the
Internet and Web 2.0 technologies.2 Non-State actors also use other avenues
for mainstreaming child welfare and rights issues. Forums like the WSIS cre-
ate opportunities for civil society to engage with industry and governments
(including those from developing countries) in the governance process (WSIS,
2005: Item 65). The creation of the Internet Governance Forum as part of the
Tunis Agenda envisages a forum for cooperation and engagement which will
Above all we need to stop thinking about the Internet as if it were, essen-
tially, an adult medium for which special (meaning irritating) provi-
sions need to be made to take account of the fact that children will use it
from time to time. Children and young people are a large, persistent and
permanent group of Internet users.
What are the risks faced by children in using the device, software or service?
To what extent are the risks encountered by children the product of lack of
awareness?
What information do children need to help them avoid or manage these risks
effectively?
What design solutions can be embedded in the services or devices?
What support or guidance do children and parents need?
How does industry deal effectively with public anxieties and concerns?
What strategies should each information service provider consider?
Will moral panics impact the trust and confidence of consumers (i.e. parents and
children) have on the industry or individual product or services?
the benefits of adopting the MSIG strategy for enhancing the safety of chil-
dren in the online environment (OSTWG, 2010; ISTTF, 2009; ACMA, 2009d;
Table 6.3). It is not uncommon to find policymakers integrating deliberative
and participatory risk management processes into sector-specific activities
(e.g. mobile phones, social networking sites and online games), which seek
to create a coherent risk management framework in measures like
Table 6.4 Child sexual abuse images from Canadian Child Exploitation
Center (2009)
82.1 per cent of the images analysed by Cybertip.ca depicted very young,
pre-pubescent children under 12 years
Of the 4,110 unique images assessed by analysts, over 35 per cent showed sexual
assaults against children
77.6 per cent of webpages had at least one child abuse image of a child less than
eight years of age, with many showing infants and toddlers being assaulted
Images of children less than eight years old most often depicted them being abused
through sexual assaults
Children abused through extreme sexual assaults including bestiality, bondage,
torture, and degrading acts such as defecation, mostly (68.5 per cent) occurred
against children under eight years old
83 per cent of the images were of girl children
Source: Canadian Child Exploitation Center, 2009.
The examples in Table 6.5 illustrate just some of the ways the logic of in-
formation flows introduce a degree of complexity and speed into the way
issues and roles of governments, the private sector and civil society have
to be reassessed and redefined, since in a slower world, the blind forces
of evolution could be relied on to adjust business and political models to
meet such economic, political, cultural and environmental challenges
(Cave et al., 2007: 30). The transformation in the public and private sector
engagement in online child safety governance reflects in one respect the
way systems operate. Cherry and Bauer use complexity theory to high-
light the difficulty in developing sustainable policies in an environment
of complex adaptive systems (Cherry et al., 2004). They suggest that the
nature of complex systems and the unpredictability of such systems create
problems for policy prescriptions based on outcomes rather than processes.
Consequently, managing risk in an environment of decentralised and com-
plex network infrastructures eludes customised governance prescriptions in
view of the range of stakeholders participating in the policymaking and
deliberative process.
There are three particular responses to risk management in the age of
modernity. First, policymakers seeking to develop and implement child pro-
tection policies now have to address the unintended and disruptive conse-
quences resulting from those who seek to evade its rules through the use of
encryption technologies, P2P networks and websites from locations that are
outside the reach of national law enforcement authorities. Second, a more
immediate policy challenge is to facilitate the process where international
standards and principles for safeguarding children can be better coordi-
nated within the MSIG framework. Third, as policymakers increasingly turn
to legal, technical and educational solutions to promote safety norms, they
cannot ignore moral hazards that may accompany precautionary and pru-
dential risk management strategies (Van Asselt, 2005).
What the preceding discussions highlight is not only the complex dynamics
of MSIG but that the management of online risks to the various contexts
and multimedia platforms will require
The very intricacies of governance and the emotive nature of the issues raised
by sex tourism, child pornography and online sexual grooming should alert
us to the fact that we cannot neatly package governance polices or regard
one regulatory technique as overcoming moral hazard issues and risk gener-
ated by poor decision-making skills. As Ayres and Braithwaite observe:
Good policy analysis is not about choosing between the free market and
government regulation. Nor is it simply deciding what the law should
proscribe ... It is this mix, this interplay, that works to assist or impede
solution of the policy problem. (1992: 3)
Critically, the move from managing offline to online risks has led two para-
digmatic shifts in risk governance:
The UK approach
The United Kingdom continues to regard self- and co-regulation as appro-
priate regulatory strategies for online child safety. One practical benefit in
using codes of practice as a governance strategy in relation to hotlines, mo-
bile phone and content providers and social networking sites is that they vest
Content. This document serves as a standard setting tool. It describes the re-
sponsibilities assumed by ISPs for ensuring the safety and security of its cus-
tomers with regard to exposure to illegal online content. The expectation
that members comply with the obligation to implement appropriate measures
in response to notices suggest that policymakers recognise that there is no
perfect security solution. The guidance provided by the Code is advisory in
nature and describes the obligations in a manner which can be reasonably
understood and complied with. For example, Appendix 2 defines policies that
members need to adopt when hosting newsgroups. The IWF also advises ISPs
not to carry newsgroups that are normally regarded as promoting or linking
to content of a paedophilic nature. Finally, to assist companies, IT and HR and
legal professionals, the IWF provides these professionals with relevant and
appropriate information aimed at raising their awareness of the precise scope
of the organisations authority and remit, the law on child sexual abuse and
the mechanisms for reporting and measures which ensure compliance with
legal standards and rules. The focus on due diligence implies that not only
is security governance an ongoing process that demonstrating compliance
with industry standards is an important governance measure. that members
are able to demonstrate compliance with industrys standards. Updating of
keywords and phrases used to locate sexual abuse content online to members
allows ISPs to adopt responsive measures aimed at minimising the availability
of and accessibility to such content. The work undertaken by the IWF has an
impact at the regional and international level. Foreign-based ISPs and hosts
of websites use the information provided by the IWF to reduce the number
of portals where child sexual abuse content are located. The IWF also notifies
national and international news providers and ISPs of cases involving online
newsgroups which host and advertise child sexual abuse content. Finally, the
IWF provides its staff and partners with best practice guidelines relating to
the collection and processing of potentially illegal indecent images of child
sexual abuse. To avoid potential prosecution under the PCA, a Memorandum
of Understanding was concluded between the CPS and the ACPO.5 The aim
of the Memorandum is to facilitate good governance in terms of collabor-
ation and information sharing between those engaged in collecting, investi-
gating and prosecuting offences relating to the creation and distribution of
child abuse images. The continued importance of the IWF needs to be seen in
its ability to balance societal expectations that risks be managed on the one
hand and industrys recognition that early identification of the problems and
the steps to be taken are critical to securing compliance with their obligations
and responsibilities on the other.
to Parliament. Whilst the CRTC works to ensure that its citizens can gain
access to the Internet through their telephone service, its remit does not
extend to regulating online content.6 The Canadian Association of Internet
Providers (CAIP) is a non-profit organisation which represents Internet ser-
vice providers in the country. The Code of Conduct requires all its members
to observe the laws and cooperate with the law enforcement authority. Its
value in standard setting and promoting compliance and timely responses
to threats and risks are very much in line with the points raised with re-
gard to the IWF. Industry regulation is achieved through a mixture of laws
and best practices.7 The Government of Canada set up a national hotline in
2004. Cybertip.ca received a five-year funding agreement with Public Safety
Canada. Its remit is to receive reports from the general public on matters re-
lating to the sexual exploitation of children. The website is owned and oper-
ated by the CCCP. Cybertip.ca works closely with law enforcement partners
from across the Internet and telecommunications industry. It has a much
wider role than the IWF in that it is the organisation that also receives reports
on online sexual exploitation of children.8 The matters that come within its
remit are child sexual abuse images and material, online sexual grooming
(luring), child exploitation through prostitution, travelling to sexually ex-
ploit children and child trafficking. Cybertip.ca is a member of INHOPE.
Cybertip.cas processing of reports is not dissimilar to those adopted by
IWF or other hotlines. For example, following a report, Cybertip.ca assesses
whether the report is within its remit and cross-references the complaint
with Canadas Criminal Code. If a complaint involves a child victim, the
report is designated as priority and work is undertaken in processing the
report. The report also draws on web research and makes available relevant
information which will assist law enforcement in investigating the incident.
Cybertip.ca undertakes a significant amount of public awareness campaigns.
For example, to encourage the public to report incidents of child sexual ex-
ploitation, the organisation conducted a campaign across the major states
in Canada. The campaign I Reported It aimed to raise public awareness
about the crucial role played by individuals in society in reducing online
child sexual exploitation by reporting incidents to Cybertip.ca. It is perhaps
reasonable to suggest that the self-regulation approach pursued in Canada
appears to regard the division of responsibilities as a strategy for addressing
the problems raised by the ready availability and distribution of illegal con-
tent. For example, the Act respecting the mandatory reporting of Internet child
pornography by persons who provide an Internet service 2010 provides a regula-
tory framework relating to the reporting duties of persons who provide an
Internet service to the public if they are informed about an Internet address
where child pornography may be accessed by the general public or if they
have reasonable grounds to believe that their Internet service is being or has
been used to commit a child pornography offence (Section 3).
this is not acted upon to the satisfaction of the authority, an offence will be
deemed to have been committed under the legislation.
What is interesting about each of these national approaches to managing
online risks is the multi-level and distributive characteristics of online child
safety governance. The central features of collaboration, identification of
the subject matter for regulatory intervention and participation of State,
civil society and industry provide a blueprint for MSIG models at regional
and international levels (Klinke, 2009: 406). Two considerations continue
to inform the MSIG framework adopted by policymakers from each of the
jurisdictions considered above. First, since the pace of technological innov-
ation can expose the shortcomings of any national legal system, and its
rules, codes of practice will continue to be regarded as providing sufficient
flexibility and adaptability. Second, self-regulation not only enables the in-
dustry to assume direct responsibility for managing consumer concerns and
needs, but the inclusion of civil society in the deliberative process will en-
sure a measure of democratic participation and accountability.
et al., 2006: 6). The governance implications for ICT, mobile computing
and online service providers are evident. For example, mobile phone and
content service providers now not only meet the market needs for afford-
able and innovative products and services, but they also address consum-
ers safety needs and concerns. It can be said that the relations between
social networking services providers and their users are also evolving into
one where values like trust and confidence are seen as an integral part of
the businessconsumer relationship.
Finally, the EU has long advocated engagement with civil society and the
private sector. The SIP, for example, provides a platform where stakeholders
can exchange information about practices in the area of online child safety.
The EU Kids Online II stakeholders forum, for example, invited participation
from a cross-section of society (e.g. academics, industry child welfare organ-
isations, parent groups and governments) across 21 countries. The strategy
was adopted with the aim of providing policymakers with recommenda-
tions appropriate to the needs of individual countries (Jorge et al., 2010).
Blocking/filtering/
Risks rating/reporting Media literacy
with tools by which access control mechanisms can be activated for own-
branded content (GSM Europe, 2010f: 5).
10). Many operators have also used the Framework to further enhance their
efforts in promoting childrens safe use of mobile phones. These include
monitoring and verifying that national Codes of Practice are being imple-
mented, particularly where new products and services have been introduced
into the market (GSM Europe, 2010g: 9, 16), ensuring that marketing ac-
tivities directed against minors adhere to consumer protection guidelines
(GSM Europe, 2010h: 24) and promote transparency in the provision of mo-
bile services (GSM Europe, 2010i: 13).
In relation to clause 18, which deals with feedback from stakeholders, the
prospects look good in relation to the continued role of the Framework as a
review mechanism. The Hungarian Branch of the International Childrens
Safety Service whilst commending the efforts made by the mobile opera-
tors in addressing the safety issues, highlighted the need for greater efforts
to be directed in promoting media awareness of the safety issues and in-
formation literacy (GSM Europe, 2010g: 15). John Carr, from the United
Kingdom, noted that mobile phone operators needed to address the privacy
issues raised by the provision of location-based services software for mobile
phones (GSM Europe, 2010j: 14). He also pointed out that in the United
Kingdom, bullying through mobile phones was still an area of concern but
felt that mobile phone operators had been particularly responsive to chil-
dren and parent anxiety. The stakeholder for Bulgaria acknowledged that
its mobile operators were responsive to the safety concerns of children. It
was suggested however that mobile operators in this country still needed
to promote public awareness of online child safety through campaigns and
education, by participating in co-funding safer Internet initiatives and by
improving compliance efforts (GSM Europe, 2010j: 14).
In summary, the 2007 European Framework for Safer Mobile Use by Younger
Teenagers and Children prescribes a set of principles governing mobile
phone operators and content providers relationship with children and
their parents. They are also expected to work with other stakeholders, in-
cluding child protection organisations, with the aim of promoting the
safety of children and young persons. There are clear obligations imposed
on mobile phone and content providers to regulate childrens access to
content. These providers are expected to support classification frame-
works for commercial content based on applicable national standards and
rules. Classification of content, whether accessible through telecommu-
nications or not, are required to be consistent with national standards
regarding decency, appropriateness and legislation. Mobile providers
are expected to work closely with law enforcement in dealing with il-
legal content (e.g. child sexual abuse images) and are expected to alert
INHOPE or equivalent authorities when they encounter such content. In
supporting the efforts of law enforcement, mobile phone providers are
encouraged to support legally authorised notice and take down requests.
With regard to parental concerns about childrens access to inappropriate
Signatories P1 P2 P3 P4 P5 P6 P7 Comments/clarification
comprehensible; it was felt that more effort was needed to provide young
children with directed information on risk prevention measures and report-
ing mechanisms (ibid., 2010: 201). The Report does not make clear what
age groups came within the category of children and teens. In relation
to the information relating to online risks, most sites provided information
about online bullying, hate speech, risks associated with divulging personal
information and dangers of posting inappropriate or suggestive photo-
graphs on profile pages. From the sites tested, it was particularly noticeable
that a number of service providers had very little or no information about
the risks posed by sexual solicitation by adults, self-harm and illegal child
images (ibid., 2010: 22). YouTube was seen as an example of good practice
in relation to providing easy access to all relevant safety information. Sites
like Habbo Hotel, Hyves, MySpace, YouTube and Zap provided safety infor-
mation regarded as being accessible to children. Principle 2, which deals
with age-appropriate services, was regarded as being implemented by most
services, with information stipulating the age requirements for accessing
services (ibid., 2010: 24). Many sites used technical and legal mechanisms to
restrict minors access to age-inappropriate information. The reviewers felt
that more effort could have been made in providing parents with access to
technological control tools on these sites (ibid., 2010: 25). Age verification
and authentication of the identity of those registering on social networking
sites continue to pose a challenge. In a recent survey by Consumer Reports,
2011 State of the Net Survey, it was found that 7.5 million out of 20 million
minors from the United States with Facebook accounts were below the age
of 13 years (Consumer Reports, 2011). Facebooks registration policy states
that users must be at least 13 years old. This social networking site provider
is alleged to remove at least 20,000 underage users each day (Smith, 2011).
At a hearing before the Joint Select Committee on Cyber-Safety, Facebook
indicated that it was making considerable efforts in removing underage
minors on its Australian sites (ABC News, 2011). This is an issue addressed in
the report made by the examiners under the SSNP. It was reported that out
of the 20 sites examined, seven applications were registered without email
verification. In relation to three service providers, which were restricted to
minors below 11 years of age, sign up was refused, with 17 service providers
indicating that the refusal was due to age restrictions. The researchers used
fictional birthday dates to re-register onto sites (i.e. indicating that the child
was much older) where registration was previously refused on the grounds
of age restriction. In seven instances, registration was approved by a simple
change of the birthday date or age (ibid., 2010: 26). Sites like Bebo, Facebook,
Microsoft XBOX Live and MySpace were held to have effective measures
implementing age-restriction controls. The researchers found that principle
3 was not fully implemented by the sites tested. Even though many sites
made available privacy and related information control settings, the fact that
these were not set as default meant that some personal information was still
visible to users and information of minors was still discoverable in user and
general public directories (ibid., 2010: 278). Users in some instances could
easily post comments on a profile whilst other sites had in place pre-ap-
proval/moderating tools (ibid., 2010: 29). That said, many services provided
tools which allowed users to delete or remove postings and photographs on
their own profile. A number of sites provided an alert service to users, noti-
fying them when a picture containing them had been tagged on other peo-
ples profiles (ibid., 2010: 31). It seems that sites like Facebook and Myspace
have made some progress in addressing the requirements under this prin-
ciple. To assess whether the sites tested took users safety concerns seriously,
the researchers sent the following message: I am writing to you because
someone is sending me scary messages. What should I do about this? Please
help me (ibid., 2010: 32). The message was sent from the registered profile
of both a fictional 11-year-old and a 15-year-old child. The lack of an ef-
fective response from the sites could be explained by the fact that most sites
have a pre-determined procedure for processing assistance and prescribe the
type of concerns and likely risk management steps to be taken (e.g. bullying,
grooming, harassment and illegal content). The researchers expressed dis-
appointment that in a number of cases no acknowledgement to the request
was received. Where links for reporting mechanisms were made available
on sites it was found that response times varied from 24 hours to one week.
Thirteen sites did not reply to the message requesting assistance while seven
responded within 7 hours (ibid., 2010: 33). Google (YouTube), Myspace and
Microsoft were regarded as examples of best practice in relation to respond-
ing to the underage user. ARTO, Bebo and Facebook were some of the sites
deemed to have appropriate report mechanisms and found to acknowledge
reports sent by users (Staksrud et al., 2010: 34). Anecdotal accounts of re-
sponse times suggest that more effort needs to be made by social networking
site providers in this area. Generally, attempts to ascertain the response and
reaction times to notices are important since a failure to address concerns
promptly can often lead to minors being left without support during the in-
terim. Returning to the implementation report, for ethical reasons principle
5 could not be evaluated, and the researchers could not submit reports of
illegal content and conduct. Many sites appear to have encouraged users to
adopt a safe use approach to personal information (principle 6) (ibid., 2010:
36). Users could use tools to alter their privacy settings and were provided
information which enabled them to make informed choices and decisions
about the information they made available about themselves or posted on-
line (ibid., 2010: 37). Bebo, MySpace, Habbo and IRC Galleria were identi-
fied as having exemplary practices. The report noted that more could still
be done by social networking site providers in publicising how users could
terminate their accounts (ibid., 2010: 389). Finally the researchers relied on
the self-declarations in establishing the sites implementing principle 7 (as
was the case for principle 5), owing to ethical considerations.
Conclusion
This chapter has provided one way of approaching and understanding the
MSIG framework comprising the State, the private sector and civil society.
The complexity introduced by the transnational nature of online risks and
the nature of Internet communication infrastructures necessitates the adop-
tion of flexible and reflexive regulatory strategies that operate at different
levels and contexts. The use of Becks ideas also illustrates how the manage-
ment of risks and the processes for deliberation and participation become
an important focal point of civil society activism and government concern.
Increasingly, it seems likely that it is through these interactions that meas-
ures to assess, manage and communicate risks will be identified and inform
governance policies and strategies. The two case studies illustrate the role
of the EU in advancing the MSIG model for online child safety. These case
studies also underscore Becks conception of the risk society, particularly in
view of the complexity in managing convergence and the processes for risk
management, deliberation and participation involving civil society, industry
and policymakers. Convergence in technology and social media implicates
intermediaries who are deemed to be carriers and distributors of illegal con-
tent and these problems will have to be confronted at some stage in the
immediate future. The contamination of the carrier model by those who
engage in child sexual abuse and commercial exploitation has blurred the
boundaries between telecommunication and child protection policies on
the one hand and on the other hand has made domestic and international
policymaking dependent on the integration of civil society and industry
into the process of identifying and implementing sustainable solutions
(Wu, 2004). It is unclear whether the EU and civil society organisations will
Overview
As Web 2.0 technologies and social media become an integral part of chil-
drens lives, media literacy is emerging as an invaluable policy response, par-
ticularly for safeguarding children in the online environment (Livingstone,
2004a,b: 5; Prensky, 2001; cf. NCTE 1975). Targeting media literacy measures
at children is not new. Before the Internet, educational and media aware-
ness initiatives were relied upon to inculcate in children critical literacy
skills (Gill, 2007:1838; Megee, 1997). Media literacy initiatives were also
seen as helping counteract the negative developmental and psychological
effects of television programmes and commercial advertising on children
(Buckingham, 2007: 846; Nathanson, 2004). An important premise in
media literacy policies is that individuals who do not have access to rele-
vant information will be least equipped in managing Web 2.0 technologies
and online safety incidents in a safe and responsible manner (Rideout et
al., 2007). This intuition is broadly correct, as is reflected in the import-
ance attached by the European Commission, mobile phone and social net-
working services providers in educating users, children and parents on the
online safety and security issues (European Commission, 2011b; ECDG,
2009). This chapter is primarily concerned with understanding the role of
media literacy with regard to online child safety governance; it emphasises
some of its key features within the context of converging information and
social media communication platforms and network publics which have
practical governance and regulatory implications. Whilst accepting the
value of informed decision-making as a child protection strategy, the cen-
tral argument pursued in this chapter is that youth culture, network pub-
lics, the affordances of information flows and digital information introduce
new complications that policymakers cannot ignore. Indeed, the idea that
media literacy empowers children to better manage online risks should not
disguise the fact that often it is not the lack of information about Internet
threats but poor decision-making skills and the absence of ethical norms
263
that lie at the root of some of the online child safety governance issues
(James et al., 2008; Thornburgh et al., 2002: 1213). Recognition of this fea-
ture has important implications for what we can and should expect from
media literacy programmes (Byrne, 2009).
Preliminary observations
Online child safety education and awareness raising initiatives are now
firmly grounded in national, regional and supranational fora. On 13
November 2008, the UN Secretary-General Ban Ki-moon announced the
setting up of the International Telecommunication Unions Child Online
Protection (COP) initiative (ITU, 2008b). The COP initiative brings together
stakeholders from the private and public sector, including UNICEF, the UN
Interregional Crime and Justice Research Institute and the UN Institute for
Disarmament Research. Raising awareness and capacity building are seen
as critical to promoting and sustaining a culture of safe and responsible
use of the Internet. The Tunis Commitment affirmed the indivisibility of
human rights and regarded access to ICT, information and capacity build-
ing as key to creating an inclusive information society (WSIS, 2005). This
Commitment has the broad support of governments, the private sector,
civil society and international organisations in working towards imple-
menting the undertakings set out in the Geneva Declaration of Principles and
Plan of Action.
There are two models which are used to promote online safety education.
The first is the protection/precaution model, which focuses on the con-
tact, content and conduct risks and the measures to be taken in minimis-
ing exposure to these (Penman et al., 2007). It is quite common in such a
model for a prescriptive approach to be taken in managing childrens access
to and use of Web 2.0 technologies (e.g. acceptable use policies relating
to ICT use, technological and design solutions and online safety awareness
instruction). The emphasis here is on reinforcing the rules for safe and re-
sponsible use of Web 2.0 technologies and digital media. The COP initiative,
for example, advocates greater parental and educator oversight in managing
the online activities of very young children. Strategies include communi-
cating the rules for accessing the Internet and utilisation of technological
safety tools. For older age groups, it is more common to see online safety
education programmes which adopt the precaution/evaluative model.
Online safety education programmes targeting this age group aim to strike
a balance between reinforcing protective risk management measures and
encouraging reflective skills and values; children, educators and schools are
seen as part of the whole school approach towards promoting safe and re-
sponsible use of communication technologies (Ofsted, 2010; OSTWG, 2010;
ACMA 2009a,b). This model also attaches particular importance to building
citizenship and resilience values (see information security discussion). A
variant of the precaution/evaluative model is the child-centric govern-
ance model that defines the issues to be addressed by parents and educators
for the age groups 57, 812 and 13 and above (ITU, 2009b). The guidelines
deal with strategies and measures that can be adapted to deal with the cul-
tural and developmental needs of children and young people. Broadly, on-
line safety education measures adopted in jurisdictions where children are
exposed to Web 2.0 technologies strive to uphold the UNCRC and the Tunis
Commitment regarding the the role of ICTs in the protection of children
and in enhancing the development of children as well as taking steps to
strengthen action to protect children from abuse and defend their rights in
the context of ICTs (WSIS, 2005: paragraph 24).
for the delivery of media literacy programmes (ITU, 2009b,c). For example,
as a result of Web 2.0 technologies being readily accessible and ubiquitous,
we cannot view safety and security simply in terms of securing and moni-
toring physical spaces inhabited by children, since information flows now
make possible for risks to be encountered in various contexts (e.g. home,
school, virtual worlds, and social networking sites) and at different levels in
the network infrastructure (e.g. game consoles, mobile phones and Internet)
(Livingstone et al., 2011: 512). Consequently, one objective of media lit-
eracy must be to help children make informed decisions about how online
safety incidents are to be identified and managed. Another objective would
be to educate children to realise that seeking appropriate assistance from
responsible adults when needed is a legitimate option. Too often, anecdotal
evidence suggests that children are fearful of reporting concerns and online
safety incidents to parents and educators. In short, media literacy measures
need to accommodate the nuances of engaging with youth culture, digital
media and Web 2.0 technologies, particularly as mobile computing and in-
formation networks already create considerable challenges for online ser-
vice providers, ISPs and parents in acting as digital gatekeepers (Hersh,
2001). Online monitoring tools and software are far from being infallible
(European Commission, 2011a). In a recent study released by the European
Commission under the SIP, it was found that a number of filtering software
and parental control tools were less than effective on social networking sites
and blogs (European Commission, 2011a). The study also reported that only
25 per cent of parents employed content regulation software. Other find-
ings included the shortcomings in regulating age-inappropriate content on
Smartphones and game consoles. To complicate the governance challenges
further, studies on the dynamics of network publics and the affordances
of Web 2.0 technologies also provide us with an understanding of why
online safety messages may either go unheeded or appear to be ignored
by children (Byrne, 2009; Livingstone et al., 2008a,b). boyd suggests that
some childrens exposure to risks were contributed by the fact that they
did not regard the safety messages as relevant to them or their daily lives
(boyd, 2008b: 26973). Some children, it appears, regard parental oversight
of their online activities as an intrusion into their privacy and freedoms.
Childrens perception of online safety education and media constructions
of risks cannot be underestimated. According to the psychological reactance
theory, individuals faced with curbs on their freedom will experience react-
ance and consequently reassert their choices, which have the effect of di-
luting the effect of the restrictions (Brehm, 1966; Byrne et al., 2011). Online
safety messages and parental controls when perceived as intrusions may
result in children developing work around strategies like creating false
social networking site profiles, setting up of multiple email accounts and
circumventing filtering controls and settings (Dillard et al., 2005; Mitchell
et al., 2007c). In other instances, childrens misplaced sense of their own
Boomerang effects also emerge in media literacy interventions ... that are
intended to reduce stereotypical attitudes generated from viewing media
messages may sometimes increase prejudicial responses when compared
to a control group. (Byrne et al., 2009: 8)
The boomerang effect may also provide some explanation for the miscal-
culations by children which expose them to online incidents like peer vic-
timisation and inadvertent exposure to age-inappropriate content in emails
and websites (Lenhart et al., 2007c). That said, we should resist the impulse
to view all childrens responses to online safety messages and guidance in
negative terms. Children may in fact develop their own risk management
strategies and solutions. According to the recent findings in a EU study 60
per cent of children who encountered sexual messages online discussed the
matter with persons other than their parent (Livingstone et al., 2011: 83)
Notwithstanding the risk-prone nature of many of the online activities,
children were found to utilise a wide range of risk management tools and
strategies defining their audiences through the use of privacy settings,
blocking unsolicited or unwanted friend requests from persons outside
the peer group, ensuring that only limited number of individuals gain access
to user-generated content and reporting online safety incidents to respon-
sible individuals and organisations. What this brief account of childrens
approach to information and online interactions indicates is that framing
the regulatory problem that media literacy is expected to resolve is not as
simple as it might first appear. The governance challenges facing media lit-
eracy programme development is further compounded by the fact that the
benefits of increased accessibility, mobility, replicability and instantaneity
offer for learning and development can always be abused (Lenhart et al.,
2007c). Accordingly, information security competences (and ethical or citi-
zenship values) need to be seen as a subset of media or digital literacy skills
(ONeill et al., 2010: 18). We need, however, to be cautious about engaging
in any form of technological determinism. As studies regarding childrens
use of Web 2.0 technologies continue to emphasise risks arise in differ-
ent contexts and settings and affects children differently (Livingstone et
al., 2010a, 2011). Given that children also respond and react to risks dif-
ferently (i.e. gender, ethnic minority, special education needs) media lit-
eracy strategies need to avoid the image of all children as invariably coming
Bookmarking a Website 52 45 72 70 64
Blocking messages 45 46 72 72 64
Finding information on how 51 43 71 69 63
to use the Internet safely
Changing privacy settings on 34 35 65 66 56
a social networking profile
Assessing credibility of 43 37 64 62 56
information found on
websites
Deleting record of websites 37 29 63 59 52
visited when surfing the
Internet
Blocking unsolicited 36 32 61 56 51
advertisements and mail
Changing filter preferences 15 12 41 29 28
Average number of skills 3.0 2.7 4.9 4.6 4.2
Source: Livingstone et al., 2011: 27.
These eight skills are undoubtedly important and the findings can assist
policymakers and educators better target the attainment of media literacy
skills. The differences in the level of digital competences between the 11- to
12-years-old and the 13- to 15-years-old band should make clear that media
literacy instruction needs to better engage children and effective strategies
for measuring outcomes need to be developed. Findings that 28 per cent
of the children surveyed were not confident in using access control tools
to differentiate the quality of online content or that 34 per cent of chil-
dren aged 1112 years did not know how to alter the settings for managing
disclosure and control of personal information on social networking sites
need to be addressed through the use of practical exercises drawn from situ-
ations children are likely to encounter in their daily lives and experiences.
The report concludes that some of the critical and safety skills still need to
be more robustly embedded in current online safety education programmes
(Livingstone et al., 2011: 27). The focus on competences like the ability to
adopt a critical stance on the quality of the information on websites, chan-
ging filtering and privacy settings, blocking unwanted communications and
identifying safety information online are some of the skills children will
have to master if they are to better engage with Web 2.0 technologies and so-
cial media confidently and safely. Clearly, education authorities and schools
need to reassess the delivery, implementation and evaluation of media lit-
eracy programmes in the light of these findings (Livingstone et al., 2011:
1456). The Office for Standards in Education, Childrens Services and Skills
(Ofsted) will undoubtedly have an important role in auditing progress in
this sphere of online safety education. It may very well be that more efforts
will have to be directed at ensuring that parents and educators are equipped
with the knowledge, skills and confidence in assisting children towards this
end. Another explanation for these findings could very well be due to the
fact that online safety education has until now been introduced to children
far too late; educational interventions aimed at facilitating appropriate be-
havioural changes and attitudes need to be introduced when children first
engage with Web 2.0 technologies (Livingstone et al., 2011: 145).
Whilst the focus on ICT competences is important, online safety educa-
tion must also address information security literacy issues like the manipu-
lability, replicability and permanence of information. Other issues relate
to the nature of information networks and the difficulties individuals en-
counter when differentiating between various forms of content. Ethical and
moral dimensions of online behaviour can also be integrated into media
literacy programmes (e.g. hacking, illegal file sharing, sexting and cyberbul-
lying). The aim in seeking responses to the information security and eth-
ical issues raised by childrens participation in network publics is to educate
children, parents and educators about the properties of information net-
works and to encourage them to evaluate technology from the perspective
of their daily experiences and activities. The discussions generated between
the child and the parent/educator can also be used to promote an under-
standing of the malleable nature of personal information, and identify the
power imbalance and information asymmetries implicit in online interac-
tions. As Turkle correctly observes, the view that childhood is a moratorium
space may need to be re-thought since the permanence of data does not
readily sit alongside with an online existence that generates its own elec-
tronic shadow (Turkle, 2011: 260).
Two additional observations can be made in the light of the findings from
the EU study. First, the findings regarding a childs understanding and man-
agement of its privacy need to be approached with some circumspection.
boyd and Hargittai rightly suggest that young adults use of privacy settings
depends on a number of factors: frequency of use, familiarity, confidence
with technology and fear (boyd et al., 2010). In their study of young adoles-
cents on Facebook they noted some correspondence between childrens con-
fidence and familiarity with the communication platform and their ability
in managing information accessed by their target audience. The authors
also conclude that online service providers do not take into account suffi-
ciently the fact that children who are most vulnerable may be least able to
make effective use of their privacy settings on their social network accounts
(boyd et al., 2010). This is true but there is a much deeper issue. Turkle sug-
gests that even though childrens and adults perceptions of privacy may
not necessarily be identical, it does not obviate the need for parents and
educators to engage children more fully in a wider discussion about how
technology, privacy, and identity are being re-wired by online service pro-
viders (Turkle, 2011: 2604). With regard to possessing critical skills which
can assist children in differentiating the quality of information flows, the
findings from the EU study do not make clear the process by which children
actually engage with online content. This oversight needs to be rectified.
One reason why children may inadvertently encounter age-inappropriate
content from search results is that well-known information retrieval sys-
tems tend to be regarded as badges of credibility and trust (Hargittai et al.,
2010). This leap of faith is not unsurprising as Sundar observes that online
content is now a composite of messages, categories and sources embedded
in the numerous layers of online dissemination of content (Sundar, 2007:
74). Media literacy strategies must as a consequence start from the premise
that children (like adults) adopt varying formal and informal content fil-
tering strategies. An understanding of these processes is an important first
step in supporting children in their attempts to differentiate the quality of
online content derived from websites and search engine results (Metzger,
2007). If media literacy awareness initiatives are to attain their objectives,
these complexities must be confronted, not only by the ICT industry but
by online service providers. Accordingly, parents and educators need to be
provided with the training and skills that enable them to understand the
significance of website design, features and presentation, since these are
attributes that young adults unconsciously take into account when evaluating
web content (Hargittai et al., 2010). A childs assessment of the credibility of
material found online or its ability to differentiate the quality of online con-
tent can be derived from a wide range of sources and consequently any ef-
fective media literacy programme must reflect an awareness of cues children
use when determining the credibility of online content in both formal and
informal settings (Hargittai et al., 2010: 487).
There are a number of benefits in integrating some of the observations
noted above into existing online safety education and media literacy initia-
tives generally. For example, media literacy strategies can be used to identify
concrete situations and affordances that are prominent in childrens daily
activities. Second, an understanding of childrens use and perceptions of
Web 2.0 opportunities and risks will ensure that children can be equipped
with the knowledge and support that will enable them to reflect on their
online activities (Donath et al., 2004). Finally, information security edu-
cation becomes an ongoing and relational activity where children can be
engaged in a dialogue on not only what the risks are but also how risks arise
and the rationale of many of the formal and informal rules and norms that
can promote and sustain a culture of safe and responsible use. Engagement
and continued dialogue will also ensure that parents and educators will be
able to fulfil their roles as mediators should concerns arise (Livingstone et
al., 2011: 1501). There is evidence from the wealth of information security
material now made available on websites and those which are distributed in
schools that the nuances of network publics and technological affordances
are gradually being understood. Within the United Kingdom, organisations
like Childnet, Beatbullying and CEOP now make available considerable in-
formation aimed at promoting childrens, parents and educators aware-
ness of existing and emerging information security risks (CEOP, 2010a).
CEOP has recently produced educational material introducing children as
young as five years of age to information security rules and concepts. The
Exposed is one example of an initiative that helps children understand
the persistence of data and its enduring implications for those engaged in
the practice of sexting (CEOP, 2011). Complex data protection and privacy
issues have also been addressed through the animation film Lee and Kims
Adventure which reinforce the security implications of the persistence and
malleability of digital information. These are just two examples of resources
that are now made available to children and parents and crucially, for
educators. The COP initiative has also provided online safety guidelines for
parents, educators and children, which can be adapted accordingly (ITU,
2009b). These strategies and measures are increasingly reflected in the
developments taking place across many jurisdictions including Australia,
the United States and Canada and Member States in the EU.
One final point with regard to capacity building should be noted here.
Should children be confused about the information they access online or
encounter problems with regard to the use of social networking sites, mo-
bile phones or other communications devices, it is imperative that they seek
assistance from responsible adults (Livingstone et al., 2011: 103122). Many
schools and child safety organisations provide information on how chil-
dren can seek assistance or obtain redress. Even though there is evidence
of children having recourse to peer mediation (i.e. CyberMentors), it is also
important that measures are put in place which enable parents and educa-
tors to provide support and assistance (mediatory functions). Parents and
educators have an important role in supporting and sustaining the standard
setting activities covered in this book (National Foundation for Educational
Research, 2009). Four reasons can be offered by way of support for inte-
grating parents and educators into the MSIG framework, whilst noting some
of the shortcomings expressed earlier. The first is that parents and educators
spend by far the largest proportion of their time with children when they
are at a developmental and formative phase. Admittedly, one is reliant on
the child developmental model here in suggesting that adults can play an
influential role in terms of both mediating ongoing and emerging issues
encountered by children and promoting a culture of safety and civic re-
sponsibility (ONeill et al., 2010: 2830). The role of parental oversight is
based on the premise that parents decisions and actions can have a positive
impact on childrens online interactions and consumption of Web 2.0 tech-
nologies (Livingstone et al., 2011: 11718; Byrne et al., 2011). Researchers
have long studied the strategies employed by parents and educators in medi-
ating childrens use of media (Livingstone, 2007, 2009c; Nathanson, 2004).
In their survey of techniques adopted by parents in managing the online
activities of children aged between 12 and 17 years, Livingstone and Helsper
noted that the use of filtering and monitoring software solutions and social
strategies like co-use, time and location restrictions varied according to par-
ental styles, familiarity with ICT, age and gender of children (Livingstone
et al., 2008c, 2009a). Nathanson in a separate survey observed, however,
that parents with negative conceptions of content screened on television
were more active in mediating childrens access to such content (Nathanson,
2002). This is also likely to be true in the case of parents whose view of
childrens interaction with Web 2.0 technologies are largely informed by
media stories which sensationalise and magnify online risks and threats
facing children (Livingstone et al., 2011: 118; Byrne et al., 2011). It is par-
ticularly helpful that online service providers now coordinate their activ-
ities with those of parents and educators by making available filtering and
monitoring software, and instructional material focusing on specific age
groups (Livingstone et al., 2011: 148; Eastin, 2008). However, it should be
noted that finding an effective strategy for engaging parents and carers
must continue to be an important governance priority. Surveys suggest that
some parents seem to be unaware of the online safety issues, underesti-
mate the risks faced by their children or are less than confident in using
online filtering tools and safety measures (Livingstone et al., 2010b: 10222;
Livingstone et al., 2011: 11114). Children also reported that informing par-
ents about past online safety incidents did have some influence on medi-
ation strategies (Livingstone et al., 2011: 11619). Interestingly, the recent
findings in the EU study relating to the differences between children and
their parents accounts of the online safety incidents experienced provide
an insight into the complex interplay between reactance, parentchild me-
diation strategies and childrens reporting of risky behaviour and online
safety incidents (Livingstone et al., 2011: 6671, 7778; Lee et al., 2007; Liau
et al., 2005, 2008). The study also found that only a quarter of the children
surveyed found the mediation efforts of parents to be helpful (Livingstone
et al., 2011: 115). Children in Turkey, Ireland and Bulgaria, for example,
viewed parental mediation efforts as being overly restrictive when compared
with experiences reported by children from Hungary and the Netherlands
(ibid., 2011: 117). A number of possible explanations have been offered for
these findings parents lacking relevant ICT competences and knowledge;
the appropriateness of parental mediation strategies and the availability of
alternative mediatory and coping strategies (ibid.). Second, by including
parents and educators in media literacy strategies, this can only serve to en-
sure that these stakeholders have a better understanding of the contexts and
situations where timely interventions may be needed. Third, parents and
educators can also provide the ICT industry, child welfare organisations and
policymakers with insights into the issues and challenges that concern them
with regard to their experiences and those of their children. The inclusion
of parents and educators into online child safety governance can also pro-
vide policymakers with an opportunity to better coordinate their strategies,
so that a principled and coherent approach towards online safety education
can be delivered. Engaging parents and educators in the process has another
relevance. Childrens access to the Internet continues to be determined by
parents and educators, and, consequently, if the broader goal is to ensure
that children are able to realise the considerable benefits that the Internet
and its technologies make possible, parents and educators need to have a
better understanding of Web 2.0 technologies and the cultural dimensions
of network publics (Livingstone et al., 2009b: 311, Castells et al., 2007).
identifying the risks associated with these products and services, describing
the measures for addressing emerging problems and informing users of their
legal rights. As noted above, the European Commission has embedded media
literacy strategies into its policymaking framework (European Commission,
2006a,b). For example, in developing media literacy initiatives, organisations
in the Member States must take into account Recommendation 2006/952/
EC, which includes promoting media literacy to teachers, trainers and chil-
dren (European Parliament and Council, 2006). The Council of Europe has
been proactive, as reflected in the publication of an online version of the
Internet Literacy Handbook and a guide for teachers Through the Wild Web
Woods (Council of Europe, 2009, 2010).
As noted previously, the UNCRC and the Tunis Commitment envisage the
State and societys commitment to enabling children develop their abilities
and potential. More importantly, the Tunis Commitment calls on govern-
ments, the public and private sector and civil society to empower young
people as key contributors to building an inclusive Information Society
(WSIS, 2005: paragraph 25). Media literacy policymaking, and the strategy
of empowerment, cannot be viewed outside the social milieu where chil-
dren and their identities are socially constructed. Livingstone suggests that
whilst the efforts of national media regulators and regional institutions
like the EU aim to democratise childrens engagement with new commu-
nication technologies and services, she counsels us to look carefully at the
economic and political imperatives that are currently driving the media
literacy policy agenda (Livingstone, 2008c: 58). It may very well be the
case that smart regulation and the discourse on stakeholder participa-
tion may be the metaphorical fig leaf used to clothe the logic of capit-
alist imperatives. The politics of media literacy may be even more complex.
Gill suggests that interest group politics characteristically tend to dominate
policymaking and regulatory intervention since [s]afety regulators, child
protection and accident prevention agencies will want to see reductions in
accidents, injuries, cases of abuse and neglect and other types of adverse
outcome (Gill, 2007: 82). Interestingly, notwithstanding the intentions of
governments, civil society and the private sector the strategy reinforcing
risk aversion is characteristic of risk protestors who regard the uncertain
nature of the harm inherent in childrens risk-prone activities as justifying
regulatory oversight (Van Asselt et al., 2009: 360).
The first is that it does not address the fundamental inequalities in young
peoples access to new media technologies and the opportunities for par-
ticipation they represent (what we call the participation gap). The second
is that it assumes that children are actively reflecting on their media
experiences and thus can articulate what they learn from their participa-
tion (the transparency problem). The third is that it assumes children, on
their own, can develop the ethical norms needed to cope with a complex
and diverse social environment online (the ethics challenge). (Jenkins
et al., 2006: 16)
how well schools were engaging students with online safety practices. Ofsted
was asked to evaluate online safety training in schools. Its principal find-
ings can be summarised. First, it was found that most schools had addressed
the participation gap by ensuring that all children had access to ICT fa-
cilities and acquired basic competences. Without access to communication
technologies and relevant knowledge of how the Web 2.0 system functions,
building a sound base for promoting confidence is likely to be an uphill
struggle. Confidence emerges from having both the knowledge and oppor-
tunity to engage with Web 2.0 technologies in a supportive environment.
Second, many media literacy programmes were found to have adequately
integrated childrens experiences into the functional skills sessions, en-
suring as a consequence that children were provided with a reflective space
for engaging with the issues resulting from their participation in network
publics (transparency gap). Finally, the inclusion of well-informed parents
and educators was seen as creating opportunities where children could be
engaged in a discussion on the role and place of ethical norms in their inter-
actions with peers and social media (ethics challenge). It is not entirely
clear from the report what addressing the ethics challenge entails other
than creating a framework for deliberative engagement. Before delving into
this issue some brief comments can be made. Too often, an overemphasis
on the problems of information asymmetry and the individuals reluctance
to intervene in cases of peer victimisation lead to an underestimation of
the value of engaging children with the responsibilities and ethics chal-
lenges that result from their being part of an online community and culture
(Livingstone et al., 2005a). Without a basic understanding of the communi-
cation system, the tools for interaction and the ethics challenges faced by
children, parents and educators cannot begin to understand what it means
to be safe or how safety can be compromised in various venues and settings
inhabited by children. For example, Shariff alludes to the importance of
fostering a collaborative approach to addressing the problems posed by peer
victimisation and the value of education (2009: 12756). However, before
media literacy can be used to promote appropriate and reflective responses
from children, we need to not only address the deficiencies outlined in the
extract quoted above but we also have to articulate clearly what being safe
and responsible means within the cultural environment of network publics.
Turkle, for example, highlights the way breaches of civic or non-political
norms are viewed by children as part of
Media literacy strategies also have to address the new socialising structures
that constitute childrens environment of collapsing audiences and contexts
(Castells et al., 2007: 141; Livingstone, 2008a). Consequently, media literacy
strategies need to embrace an MSIG approach where
This is, however, easier said than done since the role of the Internet as a
democratising tool has also to be considered within the context of a patri-
archal society (Lankes, 2008: 108). It is not an exaggeration to say that
managing this transition in the way children now redefine their values
and norms is a process that will take considerable investment in time and
thought (Spielhofer et al., 2009; Ipsos, 2009; Ofcom, 2008c, 2009). There
is a discernible trend, however, towards addressing some or all three chal-
lenges at varying degrees of success. Educators and child welfare advocates
and policymakers from the United States, the United Kingdom, Canada
and Australia focus on the principal risks facing children and the steps
to be taken. The information awareness strategies display some common
features: (a) identifying key online safety incidents; (b) categorising audi-
ence and age groups (i.e. children, educators, parents and carers; age and
gender) and outlining formal and informal redress mechanisms. The Next
Generation Learning Portal is an example of an information portal pro-
viding parents, educators and children with information about the way
Web 2.0 technologies can be used both at home and at school, with par-
ticular focus on education.7 The site provides a wide range of information
for children, parents and educators. It is not limited to online safety edu-
cation, but also highlights some of the benefits in using technology both
in the home and in classrooms. This site contains useful information on
how technology can be used in the classroom and provides guidance for
those who use the Internet when studying at home. Indeed, this is a dom-
inant theme in the Oh, Nothing Much Report which is designed to en-
courage parents to engage with children with regard to their day in school.8
There are links from the site to online safety resources at Thinkuknow.9
Age-specific materials are grouped into resources for those aged between
4 and 7, 8 and 10 and 1116 years. There is also a set of materials for those
with special educational needs. Sites like the BBC and Childnet continue
to devote resources aimed at providing parents and children with infor-
mation about online safety. For example, the topics covered on the CBBC
website include safety tips on gaming, use of chat rooms, social networking
sites and IM.10 Childnet International has an education portal focusing on
digital citizenship and provides useful information for parents with older
children.11 Apart from parents, educators are also provided with resources
aimed at raising their awareness of online safety issues. The online portal
Teachtoday aims to provide teachers, head teachers, governors and other
members of the school workforce with information on new technologies
and its possible use in schools.12 One by-product in providing members
of the teaching profession with this resource is to enable them to facili-
tate, support and manage childrens use of the Internet and related tech-
nologies effectively. The Teachtoday site also provides bulletin boards and
help functions to assist teachers with queries to questions or safety issues
likely to be encountered in the educational context. The online portal was
developed as part of a collaborative venture involving industry (e.g. social
networking sites and mobile phone companies) and the teaching profes-
sion. The B4USurf site adopts a similar approach.13 This portal is aimed at
young people in the Asian region, in particular Singapore. The programme
known as the Cyberwellness Framework provides a modular series of top-
ics dealing with the threats and opportunities encountered by young per-
sons online. The topics also integrate the cultural values and sensitivities
of parents and children from this region. The contents of the site are pro-
duced in collaboration with the Business Software Alliance, and the pro-
gramme targets children in the age groups 1112, 1316 and 1719 years.
There are suggested lesson plans which educators can use. For example, the
lesson on Blogging and use of social networking sites focuses on indi-
viduals responsibility for their online behaviour. Media literacy instruction
includes student participation in developing acceptable use policy for blogs
and social networking sites. The portal also provides parents with informa-
tion about the Cyberwellness Framework. In Australia, there have been
a series of enterprising initiatives promoting media literacy in relation to
online safety issues (CWG, 2010).14 Responsibility for implementing gov-
ernments policies in this area are devolved to a number of organisations
including the Department of Broadband, Communications and the Digital
Economy (DBCDE) and ACMA. The involvement of these agencies offers
the benefit of a coherent joined up approach towards cybersafety edu-
cation. The Stay Smart Online website, for example, provides a centralised
information portal for online safety education and a free alert service for
subscribers. ACMA, whom we have already mentioned previously, launched
a website, Cybersmart, which provides online users with online safety infor-
mation and advice and also has a presence on YouTube.15 Like many of the
social networking and child welfare organisations in the United Kingdom,
the website provides a mechanism for reporting illegal and suspicious ac-
tivities. Australia has its own version of Thinkuknow, which works closely
with Microsoft, the AFP and ninemsn.16 The CWG also takes soundings
from the Youth Advisory Group in developing its cybersafety education and
awareness raising policies. On 16 May 2011, ACMA announced a profes-
sional development programme for its educators (ACMA, 2011). This is a free
accredited programme aimed at providing educators with a comprehensive
understanding of childrens engagement with Web 2.0 technologies and
educators obligations in enabling children to manage their online activities
in a safe and responsible manner. In Alberta, Canada, the Alberta Children
and Youth Services provides online safety education information for chil-
dren and families. For example, the badguypatrol site (http://www.badguy-
patrol.ca/) is an interactive site which uses play and story narratives to teach
children aged between 5 and 10 years critical Internet safety skills. Some of
the issues covered include privacy and the dangers of anonymity. The web-
site http://www.weron2u.ca/ provides teenagers with a granular perspective
of online risks and threats drawing on actual techniques used by online
sexual predators and provides an interactive game involving blocking of un-
wanted contacts and true life stories of children who have met online con-
tacts offline. Finally, the Prevention of Child and Youth Sexual Exploitation
Committee of the Government of Alberta set up a website, http://www.
getwebwise.ca/, aimed primarily at families and provides resources on on-
line child safety. The Media Awareness Network has developed a website,
Be Web Aware (www.bewebaware.ca), which provides families with relevant
online safety information. This website was created in collaboration with
Bell and Microsoft Canada. In Australia, the search engine provider Google
and the computer software company Microsoft worked closely with govern-
ment and NGOs in providing all stakeholders, including children, parents
and educators, with online safety education. The social networking site,
MySpace Australia, delivered an interactive cyberbullying education cam-
paign and competition for Australian high school students in 2009. This
campaign was hosted jointly with SonyBMG, the Daily Telegraph, Kids Help
Line and the New South Wales Education Department.
the bullies, and children are encouraged to articulate reasons why such
forms of behaviour (even though intended as a prank or a joke) may be in-
appropriate. It is quite important, in the context of Hectors World, that
the bullies apologise to Ming for defacing the photo and distributing this
to others. Hectors World also adopts appropriate narratives for older chil-
dren, with the focus again being directed at raising awareness, encouraging
the adoption of acceptable social norms and reflection and providing infor-
mation about the mechanisms for redress and grievances. These values also
correspond very much with the idea of a digital citizen and reinforce the
important roles that parents and educators can play in inculcating norms of
safety and responsibility and help them target the right behaviours at a very
early age in a childs online experiences.
We can close this discussion by offering a brief snapshot of one model
that addresses the participatory, transparency and ethical compo-
nents highlighted by Jenkins.
A closer look II: The good play mode, cybermentors and Claires story
Good Play is part of the GoodWork Project which aims to showcase institu-
tions and individuals who produce work that are academically rigorous and
which are seen as making meaningful social contributions to practitioners.
The Good Play project is intended to provoke in the inquisitors an informed
discussion of the ethical fault lines that have emerged as a result of chil-
drens online experiences and interaction with social media (James et al.,
2008; Jenkins et al., 2009). Whilst media literacy policies ordinarily focus on
access, understanding, evaluation and creation, the Good Play project views
the interaction between youth and the Internet in terms of eliciting ethical
issues from online conduct that is both meaningful and engaging to the
participant and responsible to others in the community in which it is car-
ried out (Jenkins et al., 2009: 15; James et al., 2008: 44). One consequence of
approaching the ethical issues raised within this framework is that it enables
participants to adopt a child-centric perspective of interactions in network
publics and their response to the participatory, transparency and ethical chal-
lenges inherent in their leisure time activities on social networking sites, gam-
ing sites and mobile phones. The challenges can be approached from various
dimensions identity, privacy, ownership and authorship, credibility and par-
ticipation (James et al., 2008: 5). The Good Play approach is particularly rele-
vant to media literacy in that it does not adopt a fundamentalist conception
of safety or responsible use rather, it aims to foster a dialectic engagement
between children, parents and educators, which places the childs develop-
ment, needs, experiences and expectations within the broader environment
of social and cultural norms and values. Consequently, an expansive view of
ethics is adopted which includes respect/disrespect, morality/immorality
and individual behavior to role-fulfilment (James et al., 2008: 7). Values like
These are difficult questions and admittedly do not present us with easy
answers. This is or has never been claimed to be the goal of the Good Play
approach since it requires children to
It is not possible to deal with these and the earlier questions posed in any
meaningful detail, save for the observation that the absence of clearly
delineated ethical norms and poor decision-making skills lies at the root
of concerns about childrens exposure to some of the contact, conduct
and content risks. To be sure, a more robust approach to online safety
education would require educators to adapt some of the principles from
the 12 Guiding Principles of Exceptional Character20 formulated by the
International Center for Leadership in Education or those developed by
the Heartwood Institute (The Seven Universal Ethical Attributes).21 The
Seven Universal Ethical Attributes (i.e. courage, loyalty, justice, respect,
hope, honesty and love) can, for example, be adapted to reflect the dilem-
mas faced by children as bystanders to cyberbullying.22 Issues like sexting,
illegal file sharing of copyright works, peer victimisation and unauthor-
ised hacking can be based on principles like honesty, compassion and
contemplation. For example, the disintermediated nature of the online
environment may lead to individuals engaging in acts that they would not
ordinarily be involved with in the offline environment (and vice versa).
Conversely, cyberbullying may be prevalent because of the anonymised
nature of online interactions or the result of the perpetrator or bystanders
lack of empathy (Ohler, 2011; Office of the Childrens Commissioner, 2006;
Chamberlain et al., 2010; Mencap, 2007).
Indeed, it can be said that the Good Play approach embodies to varying
degrees some if not most of these principles and values when calling on
parents and educators to reflect on key governance issues raised by ques-
tions like:
How can we ensure that all students benefit from learning in ways that
allow them to participate fully in public, community, [creative,] and eco-
nomic life? How do we guarantee that the rich opportunities afforded
by the expanding media landscape are available to all? What can we do
in schools, after-school programs, and the home to give our youngest
children a head start and allow our more mature youths the chance to
develop and grow as effective participants and ethical communicators?
(Jenkins et al., 2009: 117)
Conclusion
We now have a wealth of research to draw from with regard to what chil-
dren do online, the technological affordances that increase the range and
avenues for communication and the resulting safety issues. Numerous
studies and policy reviews point to children being immersed in Web 2.0
technologies, and more crucially from a very early age (Berson, et al., 2010;
ACMA, 2009e). Even though network publics provide children with new
spheres for development, experimentation, learning and identity forma-
tion, it is also becoming apparent that the idea of Web 2.0 technologies pro-
viding a moratorium space for children to grow up needs to be reassessed
(Turkle, 2011). Convergence in multimedia technologies and their ready
accessibility provide children with new spaces for interaction and identity
formation, which may even accelerate the disappearance of childhood.
It is too early to draw any conclusions as to how best we can harness the
291
These expectations are already creating tensions within the MSIG frame-
work on a range of subjects: filtering, age verification, monitoring of online
content and the boundaries of content deemed to be inappropriate. Becks
risk thesis provides us with one rhetorical framework for understanding
the factors motivating our increasing reliance on digital gatekeepers and the
criminal law in reducing the risks faced by children (Beck, 1998). Risk con-
sciousness is pervasive, and perhaps most clearly illustrated by societys image
of the pathological child (Furedi, 1997; Beck, 1992a). One is struck very much
by the parallels between online child safety discourse and accounts of com-
munity safety initiatives involving the characterisation of youth deviant be-
haviour (e.g. anti-social behaviour), which have attracted the interest of the
media and the political establishment. It therefore comes as not too much
of a surprise that childrens online interactions are problematised (e.g. risk-
prone behaviours) and every risk-prone activity is now placed under constant
scrutiny (ITU, 2010a,b). Online safety is not purely a legal issue but is now
seen as requiring political, technological and cultural engagement (OECD,
2008c). The State is now one of a number of actors engaged in managing the
risks faced by children in the online environment. This departure from an
era where risk regulation was the province of the State and its institutions is
a feature of the risk society. As Beck correctly observes:
This is particularly true. Each chapter in this book can be viewed through
the lens of Becks risk society. Risk is obviously not a new heuristic (Hood
et al., 2001). However, it is argued that the intersection of technology,
youth culture and risk has led to traditional discourses on childrens safety
and well-being being replaced by another discourse multi-stakeholder,
governance, resilience and safety. Governance now requires all stake-
holders to engage in managing both risks and uncertainty associated with
technological affordances like chat rooms, mobile phones and social net-
working sites (Ito, 2008). The objectives outlined in the Byron Report (and
one which is also found in policy reviews across the EU, the United States,
Canada and Australia) highlight the salience of the politicisation of online
child safety governance: risk-prone activities, safe spaces and risky
behaviours (Howitt, 1995; Jenkins, 1997; Buckingham, 2007). Such is the
extent of parents anxiety that children are encouraged not to give out
their personal information and they are constantly reminded through
the media and online safety awareness initiatives of the dangers of online
sexual predators, notwithstanding that many children take precautions
like blocking strangers and use their privacy settings on social network-
ing sites to control third party access to their online communications and
user-generated content. Indeed, managing uncertainty has become as im-
portant as managing the threats posed by the Internet and its affordances.
This way of thinking has become so entrenched in contemporary discourse
that it is hard to imagine that the media, educators and parents were once
filled with a not dissimilar anxiety about unsupervised children in public
places and playgrounds (Graham, 2010). It is little wonder that adults and
children tend to disagree on how best autonomy and security issues are to
be negotiated (Castells et al., 2007; Byrne et al., 2011). These flows of infor-
mation now constitute the new risk paradigm not in the sense of new haz-
ards but in the intensity in policymaking efforts in managing complexity
and uncertainty.
New communication technologies and the platforms for engagement re-
configure the way individuals and more particularly children engage in
these spaces (boyd, 2010: 3946). One thing is apparent. As children in-
creasingly become tethered to their devices and online environments,
parents are understandably anxious about their child becoming a victim
of bullying, being inadvertently exposed to age-inappropriate content or
groomed by online sexual predators. Policymakers and educators continue
to be concerned about the corruptive influences of the world beyond the
school environment and growing reports of covert bullying and deviancy
(House of Commons, 2011). Convergence, in summary, presents society
with a complex set of challenges and decisions for child protection pol-
icymaking (Livingstone et al., 2005a; OECD, 2008a). Before we turn to the
broader question that online child safety governance raises, it is worth not-
ing in passing the findings from the interim report funded by the EU SIP
(Livingstone et al., 2011). The study also found that even though older chil-
dren tend to encounter more online risks, children can and do take respon-
sibility for managing risks and have developed coping strategies (2010: 106).
These are not isolated findings policy reviews undertaken in the United
States, Canada and Australia report the developing culture of safe and re-
sponsible use amongst children. With regard to the mediation efforts of par-
ents and educators, ACMA, in its ongoing research on childrens use of the
Internet and social media, concluded that parents were now better equipped
to manage and support their childrens Internet use (ACMA, 2009b,c). Even
though the strategies for raising public awareness and engaging industry,
educators, parents and children are having some effect, it is also clear that
a number of parents are either ignorant or suffer from apathy with regard
to online safety matters. The EU Kids Online II Report also produced the
Legal regulation
children discover a world which is endowed with meaning and that they
help to shape and share in their own developmental experiences by their
interactive responses. (1992: ibid.)
It has never been so easy for individuals and criminal organisations to gain
access to children for their sexual gratification or victimise individuals
(OECD, 2009). The Internet also makes it easier for individuals to engage
In the analysis of some of the principal areas of online child safety policy-
making, it was suggested that three goals have to be pursued in tandem
equipping children and their carers with appropriate media literacy skills,
embedding child safety norms in the architecture of the Internet and the
need to strike a balance between safety and empowerment issues. The Byron
Report in 2008, the studies in the United States by the ISTTF and the OSTWG
in 2008 and 2010, respectively, and the three reports on online risk and safety
in the digital economy published by ACMA in Australia between 2008 and
2010 have called for an MSIG approach to online child safety policymaking.
Each report advocates media literacy as an important instrument for enhan-
cing childrens safety. In Chapter 7, it was argued that media literacy initia-
tives need to take into account childrens perspectives of the affordances of
networked publics, their views on online safety issues and their risk manage-
ment strategies (Livingstone et al., 2011). The Thornburgh Commission may
have had this aspect very much in mind when it observed that
There is still quite a lot of work to be done in this respect (Livingstone et al.,
2007). In a recent study it was noted that schools in the United Kingdom
varied in their approaches towards online child safety (SWGFL, 2010: 1) This
must be an area of concern the lack of information security literacy and
understanding of network affordances can only perpetuate the widening gulf
between childrens out-of-school experiences and their school activities and
experiences. Whilst promoting greater awareness of the Internet and the sig-
nificance of its affordances for privacy, identity and security, it should not
be overlooked that education and promoting childrens awareness of infor-
mation security issues are by themselves insufficient. That said, there are
two points that need to be highlighted. First, online safety in this context
is not simply concerned with reducing the information deficit in parents
and children. Second, developmental issues needed to be taken into account
(Goswami, 2008; Livingstone et al., 2004, 2011). If we start from the premise
that children are not passive subjects, the focus of media literacy strategy
must surely be directed at educating children in the broadest sense of the
word (Byrne et al., 2009; Livingstone, 2008b). In Chapter 7 we considered
how media literacy might be conceptualised through the use of an informa-
tion security approach and, more importantly, the benefits of integrating
the framework provided by the Good Play project. By focusing on chil-
drens experiences, parents and educators, as online gatekeepers, can use the
Conclusion
Society has long struggled with the childhood question (Aries, 1973).
Protective and precautionary impulses that characterise the patriarchal
Foreword
1. For the time being the US Government maintains a residual role in the manage-
ment of the global internet through its continued engagement with the Internet
Assigned Number Authority (IANA). ICANN currently performs the IANA func-
tions, on behalf of the United States Government, through a contract with United
States Department of Commerces National Telecommunications and Information
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definition of, 902, 10810, 21011 Code of Conduct for the Protection of
elements of the offence, 939 Children from Sexual Exploitation
extreme, 1002 in Travel and Tourism,
jurisdiction and, 1656 17980
Optional Protocol on, 2024 Combating Paedophile Information
possession of, 959 Networks in Europe (COPINE)
reporting of, 21112 project, 1012
sexting as, 11521 commercial content, 250
tracings or drawings, 99100 Commercial Sexual Exploitation of
UK laws against, 90102 Children (CSEC) industry, 87
US laws against, 1027 Committee on the Rights of the Child
Child Pornography Prevention Act (CRC), 197202, 2034
(CPPA), 105 Commonwealth Criminal Code 1995,
child pornography rings, 1834 812, 170
child predators, 12 Communications Act 2003, 1256
child prostitution, 2024 Communication Service Providers
child protection issues, 389 (CSPs), 142
child protection laws, see criminal laws communications industry, 38
child protection surveys, 41 communications policies, 2267
children complexity theory, 234
attitudes toward, 16 Computer Fraud and Abuse Act, 65
best interests of, 1011, 12 computer-related offences, 63
cultural attitudes toward, 51 conduct risks, 8, 12
defined, 6 Connolly v DPP, 125
as digital natives, 318 contact risks, 8, 12
empowerment of, 2556 content
exploitation of, 4 commercial, 250
media literacy and, 26390 illegal, 39, 446, 63, 1323, 152, 233,
as offenders, 61 2502, 2567
online risks for, 35, 79, 1819 inappropriate, 7, 446, 63, 1323, 197,
online sexual solicitation of, 6786 233, 269, 293
prohibited images of, 100 monitoring of, 293
risk-prone activities, 535, 64 obscene, 61, 86121
sale of, 2024 violent, 456, 867
socialisation of, 9 content-related offences, 63
social media and, 2638 content risks, 8, 12
as victims, 295 convergence, 15, 318, 61, 2915
Web 2.0 technologies and, 2638 cultural, 328
childrens rights, 192202, 207, 221 participation and, 348
children with disabilities, 47 technological, 2930, 261
child safety design, 245 co-regulation, 2357, 23940, 301
child sex offences, jurisdiction and, corporate social responsibility, 241
16580 COSPOL Internet Related Child Abuse
civil liberties, 61 Material Project (CIRCAMP), 187