Confronting Collective Harm: Technology’s Transformative Impact on Child Pornography by Jane Bailey [University of New Brunswick Law Journal]

Abstract: The epigraph suggests a dichotomy that makes categorization simple – those who accept that Internet and new communication technologies present changes “in kind” which necessitate abandonment of “old” ways of thinking about law, politics, and society, and those who deny this new reality and seek to treat it merely as incremental change. Those in the latter group are not infrequently portrayed as luddites, unwilling and unable to accept that technology necessitates rethinking everything from the ground up. Through the exploration of the impact of emerging technologies on child pornography, I suggest that this dichotomy is more fictional than real; technological developments can facilitate both transformative and incremental change. Perhaps more importantly, I suggest that transformations brought about by technology need not compel us in every instance to abandon old ways of thinking. These transformations may actually reaffirm the significance of previously made commitments and values that have been under-recognized in examinations of the justification for existing laws. In so doing, these transformations offer us not only the opportunity to get clearer about our values and commitments, but to explore new justifications for “old” ways of thinking that did not previously exist, were ignored, or were once considered weak.It is a crime in Canada to participate in many facets of the child pornography industry, from possessing and knowingly accessing child pornography through to manufacturing and distributing it. Criminal prohibitions apply whether the material in question derives solely from the imagination, involving no “real” children in its production, or actually depicts “real” children. With certain limited exceptions, it is equally illegal to photograph the sexual abuse of a child, to write a story advocating sexual activity with an “imaginary” child, to photograph an adult posing as a child engaged in explicit sexual activity, and to draw pictures showing “imaginary” children in explicit sexual activity. Criminal restrictions on the latter examples relating solely to stories and depictions of imaginary children are characterized as “virtual child pornography” for the purposes of this paper.The Criminal Code (Code) provisions relating to child pornography have been the object of considerable academic, NGO, and judicial commentary and criticism, as well as political debate. Technological innovation, in particular the Internet, renewed and perhaps intensified the debate prompting calls for international action, legislative reform, and academic debate. Much of the debate focuses on technology’s impact on the “scope” of the problem of child pornography and its increased accessibility. Possibly less attention has been paid to the potentially transformative aspects of these technologies and their impact on foundational issues, such as the justifications for regulating child pornography which bring into stark relief the significance of its broader collective harms.The “old” way for thinking about the justification for restrictions such as these was outlined in the Supreme Court of Canada’s (SCC) landmark decision on the constitutionality of the provision as it stood in 1992 in Sharpe. The SCC referred in its reasons to the objectives of preventing harm to children, including allusions to their rights to dignity, privacy and bodily integrity. However, its analysis of harms was premised first and foremost on the risk of physical harm to individual children associated with the creation and consumption of both virtual and non-virtual child pornography.This paper urges further reflection on the understanding of the harms of child pornography identified by the SCC in an attempt to get clearer about the rights and interests at stake, while grappling with the impact of related technological advances. I argue that the impact of the Internet and related digital technologies is not simply incremental, but also transformative. Emerging technologies blur the line between conscience, expression and action in ways that cry out for an understanding of the harms of child pornography encompassing not just the extremely concerning physical harm to individual children, but also broader social harms to children’s collective dignity and equality rights.Part I is an examination of the legal history leading to and connecting prior child pornography legislation with recently enacted amendments, including two key cases involving virtual child pornography in the offline context – Sharpe and Langer. Part II examines the harms analysis accepted by the SCC in Sharpe, assessing in particular its emphasis on individuated physical harm, which has subsequently been repeated in other cases. Part III explores the ways in which the Internet and related technological advances have presented incremental challenges to the enforcement and prosecution of child pornography laws. It then considers technologically-initiated transformative change that leads to an understanding of harms focusing not only upon physical harm to individual children, but also broader collective harms to children’s equality.

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