Indecent pseudo-photograph of a child

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In the United Kingdom, the Criminal Justice and Public Order Act 1994 amended the Protection of Children Act 1978, adding the concept of pseudo-photographs to the statute books.

Contents

[edit] Indecent pseudo-photograph of a child

[edit] The Law

[edit] Definition of Child

According to section 7 of the Protection of Children Act 1978,

The Sexual Offences Act 2003 changed the definition by raising the age to 18.

[edit] Definition of Pseudo-photograph

According to section 7 of the Protection of Children Act 1978,

(7) 'Pseudo-photograph' means an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph.
(8) If the impression conveyed by a pseudo-photograph is that the person shown is a child, the pseudo-photograph shall be treated for all purposes of this Act as showing a child and so shall a pseudo-photograph where the predominant impression conveyed is that the person shown is a child notwithstanding that some of the physical characteristics shown are those of an adult.
(9) References to an indecent pseudo-photograph include-
(a) a copy of an indecent pseudo-photograph; and
(b) data stored on a computer disc or by other electronic means which is capable of conversion into a pseudo-photograph.

[edit] Offences

In relation to indecent pseudo-photographs of children, section 1 of the 1978 Act makes it an offence for a person to (a) make them; (b) distribute or show them; (c) possess them with a view to distributing or showing them; or (d) advertise that they are shown or distributed; and section 160 of the Criminal Justice Act 1988 makes it an offence simply to possess indecent pseudo-photographs of children.

[edit] Indecency

With regard to British law, whether a pseudo-photograph is indecent is a question of fact, and as a question of fact it is something for a jury or magistrate to decide. The jury is supposed to apply the standard of decency that ordinary right-thinking members of the public would set - the "recognised standards of propriety" as R v. Stamford [1972] puts it.

[edit] Introduction of the concept of pseudo-photographs

The concept of pseudo-photographs was created to cover a perceived lacuna that was thought to make the law impotent in the case of manipulated photographs.

In 1993/4, it was reported to the Home Affairs Select Committee that the Crown Prosecution Service were advising against prosecution in such cases since there was considerable doubt whether a manipulated photograph was an indecent photograph of a child for the purposes of the 1978 Act. The case of Shakespeare was given as example, in which indecent images had been created by adding the head of a female child to an adult body.

Images created by digital manipulation were of particular concern - for example, a photograph of an adult can be edited using computer software such as MS Paintbrush or Adobe Photoshop to add the head of a child or have certain features changed (e.g. smaller genitalia). This altered photograph would give the appearance of a child (Wasik & Taylor, 1995, Chap 5.9).

Sub-sections 84(2) and 84(3) of the Criminal Justice and Public Order Act 1994 amended the Protection of Children Act 1978 to create the offence of making an indecent pseudo-photograph of a child and to bring pseudo-photographs within the scope of the other offences under the 1978 Act.

In the 2002 discussions on measures to harmonise European Union Member States' legislation on the sexual exploitation of children and child pornography, the British Conservative MEP Timothy Kirkhope lobbied for the inclusion of pseudo-photographs in any new EU rules, saying that the creators of such things as detailed, cartoon-like pictures of children in indecent poses would still "exploit" and "end up abusing children". (The Sprout)

According to Kirkhope, "Pseudo-photographs are technically photographs, but they are created by computer software such as MS Paintbrush by using more than one picture" (apparently quoting Yaman Akdeniz, Cases & Materials).

[edit] Justification

While the creation of a pseudo-photograph would not involve a child in any indecent activity, such images were said to excite paedophile tendencies in adults equally as much as real photographs (Le Hérissier).

Another justification for the introduction of the concept of pseudo-photography was that such an image might lead to an investigation to ascertain whether or not the child shown in it was actually abused (Wasik & Taylor) - this would obviously cause great distress to the child and family involved, and would be a waste of valuable police resources.

Paedophiles were said to use photographs as a way of making children believe that "it's all right because other children do it too" and pseudo-photographs were thought to be just as suited to this purpose (Feather).

It was also claimed that indecent pseudo-photographs would have to be criminalised or their existence would make the prosecution of indecent real photographs impossible since it would be difficult to distinguish between real photographs and manipulated images (Akdeniz, Governance). UK police were said to believe that those who make pseudo-photographs or possess them go on to abuse children - from that point of view, making or obtaining possession of pseudo-photographs are acts preparatory to abuse.

[edit] Making a pseudo-photograph

The Protection of Children Act 1978 (as amended) does not define how a pseudo-photograph is made. This is to avoid the Act being limited to covering only known forms of making images. In this way, as yet unthought of forms of image production are intended to be covered.

While Act does not define how a pseudo-photograph IS made, it does tell us how it is NOT made: a pseudo-photograph is NOT taken.

It is a presumption of statutory interpretation that different words have different meanings and it was thought necessary to add the concept of pseudo-photography to the legislation. Since Parliament does nothing in vain, a pseudo-photograph is not a photograph.

The Oxford Concise English Dictionary defines a photograph as "a picture made by a camera". A pseudo-photograph, then, is an image that appears to be a photograph but which was not made with a camera.

[edit] Having the appearance of a photograph

A pseudo-photograph is an image that appears to be a photograph. A true photograph does not appear to be a photograph, it simply is one. Despite all the tricks that a photographer can use (multiple exposures, unusual angles, time delay, etc), a photograph is taken to be a record of a state of affairs that actually existed at a particular time, even though that state of affairs might have been extremely fleeting. A true photograph has not been tampered with or edited in any way.

Bearing in mind some of the arguments made in favour of the criminalisation of pseudo-photographs - in particular that a pseudo-photograph might lead to an investigation to ascertain whether or not the child shown in it was actually abused - it is clear that their main thrust is that a pseudo-photograph is a realistic image: a pseudo-photograph appears to show reality, but in actual fact depicts a state of affairs that never existed.

As an example, take the promotional poster created for the film Pretty Woman in which Julia Roberts' head is superimposed on an anonymous model's body. Taken on its own it is convincingly realistic - but the knowledge that the body is not Mrs Roberts' reveals the image to be a "pseudo-photograph". That image was presumably created on a computer or with very careful application of some very delicate scissors and some large photographs of Mrs Roberts' head and the model's body.

In addition to images composed by manipulating images of real people, objects or scenes, there are also images that consist completely of computer generated imagery - for example scenes from The Lord of the Rings films in which the Gollum character appears. There are many other scenes from those films that are convincingly realistic but show things one knows never existed as real objects or actors placed before a camera.

A pseudo-photograph, then, is an image that is realistic enough to be taken as showing a historical state of affairs but something external to the image itself reveals this not to be the case.

[edit] Works of Art as pseudo-photographs?

It is important to note that, under UK law, there is no restriction on the manner in which a pseudo-photograph can be created save that it cannot be made in the same way as a photograph. Any image that is photo-realistic but not photographic can be considered to be a pseudo-photograph.

This gives rise to the possibility that the work of various artists can be considered pseudo-photographs, for example artists in the Photo-realism movement.

The "Water Taxi, Mount Desert" image by Richard Estes is known to be a painting. Since it is photo-realistic, is it therefore also a pseudo-photograph?

When presented as a painting it might not appear to be a photograph - the scale of it, its location in an art gallery, visible brush strokes, etc might preclude that judgement. But what of a scaled down version of it? It is an image that appears to show a real state of affairs, but the knowledge that it is an image showing a painting prevents us from describing it as a photograph.

Is it, therefore, a pseudo-photograph?

[edit] Photograph or Pseudo-photograph?

In the case of an image showing Estes' "Water Taxi, Mount Desert" image for example, art historians could state that the image shows a famous painting, or the jury may even decamp to the Kemper Museum of Contemporary Art to view the painting for itself.

Clearly, such an image can be described only as a photograph of a painting, not as a pseudo-photograph (according to the 1978 Act, "data stored on a computer disk" can constitute a photograph - by definition, if a photograph is scanned, it remains a photograph).

This results in a situation in which the reason for the introduction of the pseudo-photograph concept is exactly inverted: an image that appears to show a child in an indecent situation cannot be prosecuted, this time because it is a photograph (a photograph is an indecent photograph of a child if it is indecent and if it shows a child - in this case an image could be indecent but would in fact show another image, not a child).

In R v. Fellows & Arnold (1996), the Court of Appeal considered whether a computer file containing data that could be converted into an on-screen image identical to the original photograph should be considered to be a photograph, or whether it should be considered to be a copy of a photograph. It held that

"There is nothing in the Act which makes it necessary that the copy should itself be a photograph within the dictionary or the statutory definition, and if there was, it would make the inclusion of the reference to a copy unnecessary. So we conclude that there is no restriction on the nature of a copy, and that the data represents the original photograph, in another form."

According to section 7 of the 1978 Act:-

(9) References to an indecent pseudo-photograph include—
(a) a copy of an indecent pseudo-photograph.

Might the logic from the Fellows & Arnold decision therefore mean that a photograph of a painting is a copy of a pseudo-photograph? In a word, no: a copy of a pseudo-photograph must represent the original pseudo-photograph in another form.

A realistic image is only a pseudo-photograph when it appears to be a photograph. Photographing a painting might create an image that lacks many of the elements that show the original image to be a painting: the size, frame, brush strokes, etc. But a photograph of a painting remains a "photograph" - and therefore a copy of it remains a "copy of a photograph". Nothing happens to make the photograph stop showing a real scene containing a painting and start showing a false scene that appears real: the image does not become a pseudo-photograph.

But any modification to the image will result in a pseudo-photograph being made.

[edit] Works of art as child pornography

If it is judged that a painting - or at least an image of a painting - can constitute a pseudo-photograph, it is obvious that such images can be illegal under UK law.

Cupidon, A.W. Bouguereau, 1875
Enlarge
Cupidon, A.W. Bouguereau, 1875

William-Adolphe Bouguereau's painting Cupidon is not generally considered pornographic—and many people would find such a claim absurd. However, an edited photograph of it might be considered to be an indecent pseudo-photograph of a child, and hence be classed as child pornography.

In R v. Oliver, the Court of Appeal judged that "nudity in a legitimate setting" is not indecent. However, an image of a child who is nude in a "legitimate setting" can still be considered to be indecent if the image was "indecent in the context in which it was taken". These definitions have a strong element of subjectivity and can lead to contradictions. The figure in non-pornographic Cupidon, who is nude simply because the artist wanted to show a nude child, would not be a "legitimate setting" by this definition, and would hence make this work a piece of pornography.

Furthermore, some people may consider the classification of such images of paintings as indecent pseudo-photographs of children to be "right and proper", since they argue

  1. that "erotic" images of children excite paedophilic tendencies in adults, and
  2. that paedophiles show such images to children in order to normalise certain behaviour or situations.

They would also claim that children posing nude for "soft core" or "Lolita" type websites are being abused, and that the subsequent purchasing and viewing of the photographs re-victimises the children. Also, from this viewpoint, there can be little to distinguish a child posing nude for a painting from a child posing nude for a photograph.

[edit] Legislation

[edit] See also

[edit] References

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