The Cybercrime Convention and the Criminalisation of Child Pornography Related Crimes

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INTRODUCTION: The use of computers as an instrument to commit crimes is in the increase in this modern age. It is very easy for one to possess and access child pornographic material, particularly through the use of the internet. The cybercrime convention amongst others places a responsibility on member states to make a concerted effort of an acting legislation to combat child pornography related crimes. It is important for one to understand what is meant by child pornography and what acts are criminalised or prohibited. It is also important to note that Section 28 of the Constitution of the Republic of South Africa Act, 108 of 1996 which is the supreme law of the Republic of South Africa guarantees the protection of children’s rights. The need for this protection was further echoed in the case of De Reuck v Director of Public Prosecutions, Witwatersrand Local Division and others where in the matter in was reiterated that an intrusion into perpetrator private domain is justified since child pornography and child abuse, happens in the privacy of their homes[1] RELEVANT LEGISLATION. In South Africa the legislation presently dealing with the prohibition of child pornography is the Films and Publications Amendment Act, 3 of 2009. This Act repeals some of the sections of the former Films and Publications Act, 65 of 1996, which also dealt with issues relating to child pornography. Child pornography is defined in Section 1 of the Films and Publications Act 65 of 1996 as: “Includes any Image, real or simulated, however created, depicting a person who is or who is shown as being under the age of 18 years, engaged in sexual conduct or a display of genitals which amounts to sexual exploitation of participating in, or assisting another person to engage in sexual conduct which amounts to sexual exploitation or degradation of children.”[2] Before the enactment of the Films and Publications Amendment Act [3] the legislation dealing with the combating of child pornography was the Films and Publications Act of 1996. Section 27 (i) (a) states that any person who knowingly creates, produces, imports or possess a publication with visual representation of child pornography shall be guilty of an offence. Section 27 (i) (b) prohibited the creation, distribution, production, importation and /or the possession of a film with scenes of child pornography. Furthermore the distribution of a publication that contains visual presentation of amongst others child pornography was prohibited in terms of Section 28 of Act 65 of 1996. The Act defines publication so widely that it includes computer software that is not a film and includes and message or communication including visual presentations placed on any network including but not limited to the internet. OFFENCE CREATING PROVISIONS According to the Films and Publications Amendment Act “any person who unlawfully possess ,creates ,produces or in any way contributes to, or assists in the creation or production of; imports or in any way takes steps to procure, obtain or access or in any way knowingly assist in, or facilities the importation, or procurement, obtaining or accessing of any film , game or publication which contains depictions, descriptions or scenes of child pornography or which advocates, advertises, encourages or promotes child pornography or the sexual exploitation of children shall be guilty of an offence”[4]. Section 24B(2)(a) criminalises the failure to report to the South African Police Services any knowledge or the suspicion of the commission of any of the offences referred to in sub section (i) LEGALITY AND CRIMINAL LIABILITY One of the key critical issues in taking a decision to prosecute is ensuring that the conduct of the perpetrator complies with the principle of legality and the definition of the crime whether under Common Law or based on a statutory provision[5]. Another aspect that is of critical importance in ensuring a successful prosecution is to establish that the conduct of the perpetrator conforms to the requirements of criminal liability namely;
  1. Actus reus
  2. Mens rea
  3. Unlawfulness
  4. Culpability
All these requirements must be present at all times and if anyone of them is lacking the perpetrator cannot be held criminally accountable for his deeds. If the perpetrator unknowingly accessed a website containing child pornographic material and immediately closes it, it can easily be argued that he did not have mens rea, in other words that he did not have a guilty mind and that he therefore did not commit any crime. However if he knowingly accessed the said website with the full knowledge that his conduct is wrongful/unlawful and reconciles himself with such insight, it can be argued that he acted with the necessary mens rea and a guilty mind. In other words there has to be no grounds of justification available at the disposal of the perpetrator of the crime. It is clear that even in international jurisdictions perpetrators of child pornographic crimes will always raise fancy defences such as lack of possession, unwittingly accessing a child pornography website, accidental viewing etc. In the light of what has been postulated above it is clear that the ability to prosecute successfully will always be influenced amongst others by the way the investigation was conducted Critical to any cybercrime investigation is preserving the integrity of the evidence, it is important to decide and know the following:
  1. What to look for( identify the evidence you are looking for);
  2. Where to look for the evidence;
  3. How to look for the evidence;
  4. How to handle the evidence ( for authenticity, credibility, admissibility and evidential value/ weight)
  5. By whom was the evidence gathered.
It is equally important to ensure that the evidence gathering process is done in a credible way taking into account the due process of the law. Bearing in mind that electronic evidence is very fragile and volatile in nature, every effort must be made to ensure that whatever technique or method is used to obtain or analyse such evidence does not modify, manipulate, alter and/or damage such evidence. Original evidence must preserved in the same condition in which it was found EVIDENCE GATHERING PROCESS A.THE SEARCH Section 20 of the Criminal Procedure Act[6] states the goods or articles which may be seized by the police namely:
  1. Articles concerned in the commission of an offence;
  2. Articles which may afford evidence of the commission of an offence;
  3. Articles intended to be used in the commission of an offence.
The Criminal Procedure Act empowers the police to search and seize under the authority of a warrant provided all the requirements have been complied with[7]. Section 22 of the Criminal Procedure Act serves as an exception to the effect where possible the search a seizure should be carried out on the strength of a search warrant, in terms of this section the police may search and seize without a valid warrant under the following circumstances:
  1. By obtaining a valid consent;
  2. When the police believes on reasonable grounds that if he were to apply for a search warrant it will be issued to him ;
  3. When time is of the essence, this will be when circumstances are such that any delay in obtaining the warrant is going to defeat the object of the search ( the destruction of the evidence)
CYBER INSPECTORS Section 83 of the Electronic Communications and Transactions Act[8] makes provision for a search by cyber inspectors who are appointed by the Director General of the Department of Communications in terms of Section 80 of the said Act. Section 82 (i) of the Electronic Communications and Transactions Act gives cyber inspectors wider powers of search and seizure in the performance of their duties. Critical to these powers is the authority to enter nay premises or access any information system that has a bearing on the investigation. Another interesting aspect of the Electronic Communications and Transactions Act is that it makes provision for the SAPS and or any statutory body with the authority to search and seize conferred on them by any other law to enlist the help of cyber inspectors to assist in an investigation. THE DYNAMICS OF POSSIBLE DEFENCES In order to effectively address the issues pertaining to possible defences involving the use of a computer that are likely to be raised in cases of child pornography particularly issues in relation to lack of possession, unwittingly accessing child pornography websites and accidental viewing, it is critical during the investigation process for one to know once again what to look for, where to look for it, how and why we are looking for it (the consideration of specific issues). It is also important to have regard to international law and precedents, which more often than not prove to have invaluable guidance when dealing with defences of this nature Key to the examination of the computer will be firstly to take photos or video footage of the scene and proceed with the process of the search seizure of the computer and any electronic devices, including floppy disks, cd’s, memory stick, digital cameras, zip disks and hard drives. Look also for any photographs and or any magazines in the surrounding area. The collection of the volatile data to its completion will be the next step followed by a decision whether to unplug the computer from the network of shut down the device. It will also be equally important to make copies of the hard disk, which will be used for analysis purposes whilst preserving the original information on the main computer or hard drive in its original form. In order to rebut some of these possible defences as indicated earlier it will important during the investigation or the analysis process to look at the following:
  1. How long does Mr Perver stay on the website;
  2. Check for evidence of any delete files;
  3. Check for evidence for files moved to the recycle bin;
  4. Check for evidence of temporary files downloaded from the internet;
  5. Check for additional evidence in the history folders;
  6. Investigate the likelihood of Mr Perver having an account on the internet,
  7. Investigate Mr Perver’s knowledge of the computer,
  8. Check whether any child pornographic material was retrieved form the cache,
  9. Check for hidden files that have been renamed,
  10. Check whether he has ever reported his discovery of child pornography to the police,
  11. Check his banking details for payment of his subscription to news groups to access child pornographic websites,
  12. Check emails sent and received relating to child pornography,
  13. Investigate the number of times the websites were visited,
  14. Investigate whether any thumbnail images have been manipulated or enlarged,
  15. Check for any evidence for any deletion and how often it is taking place,
  16. Investigate whether Mr Perver has a specific password, that allows him access to child pornographic websites , and
  17. Look for evidence of any attempt to delete cache.
CONCLUSION In the light of what has been postulated above it is clear that Mr Perver accessed six child pornographic websites on 25/01/2015. Section 24 B (1) prohibits any act of possession and or access to child pornography. Mr Perver will therefore have to be charged with six counts of the contravention of Section 24 B (1)(a) for the possession of child pornographic material. In addition to that he can also be charged with six counts of the contravention of Section 24 (1)(c) in that he accessed six pornographic websites on the day in question. It is also respectfully submitted that based on his knowledge of the prohibited acts being carried out in that having accessed the six pornographic websites he became aware that prohibited acts of child pornography are taking place, but failed to report that to the police that he may also be charges with six counts of the contravention of Section 24 B (2)(a). It is respectfully submitted that it is highly unlikely that Mr Perver will unwittingly access six child pornography websites on the same day. The probabilities are that he knowingly and intentionally access these websites. ADMISSIBILITY The issue regarding the admissibility of evidence is a world- wide phenomenon. In the South African context, it is the State that bears the onus of proving the Accused’s guilt beyond a reasonable doubt. This entails presenting all relevant evidential material before the court. Critical to this exercise is the admissibility and evidential weight of the evidence that is being presented before court. Admissibility simply refers to the acceptance of the evidence. It is important when presenting evidence for one to made a determination as to the type of evidence one is dealing with, the reason why such evidence is being presented and how to present it. This determination will always have an effect on the admissibility requirement of such evidence. Evidential material may consist of oral evidence, written, documentary and/or real evidence. The admissibility and evidential weight of electronic evidence is regulated by: i)Common Law; ii)Electronic Communications and Transactions Ac, 25 of 2002; iii)Criminal Procedure Act, 51 of 1977; iv)Law of Evidence Amendment Act, 45 of 1988. It is important as initially mentioned to decide when presenting electronic evidence whether it is being presented as real evidence or as documentary evidence, since the admissibility requirements of such evidence is not the same. DOCUMENT Both the common law as well as various other pieces of legislation including the Criminal Procedure Act provide us with a definition of what is a document. What is important to note is that amongst others they define a document in such a way that is has either an ordinary meaning or an extended meaning. (sections 1 and 221(4),(5) of CPA, section 33 of the Civil Proceedings Evidence Act, 25 of 1965. PLUS Case Law) DOCUMENT CLASSIFICATION A distinction has to be made between various types of documents since the requirements for admissibility varies depending on the type of a document. Documents may be classified as follows: i)Public documents; ii)Official documents (either public or private) and iii)Private documents. The general rule pertaining to documents is that one has to prove originality, authenticity and the truth of the contents but there are however exceptions to this rule in certain circumstances. There are however exceptions to the requirement of originality in certain circumstances under either the common law or some statutory provisions. When presenting a public document it is not necessary to prove the requirements mentioned above. Section 234 of the Criminal Procedure Act, regulates how an official document is to be presented in court. It needs to be mentioned at this stage that if it is a private official document, one still has to prove the truth of the contents.
[1] 2003 (2) SACR 445 (CC) [2] Section 1 of the Films and Publications Act 65 of 1996 [3] Act 3 of 2009 [4] Section 24 B (i)(a)(c) [5] Snyman [6] Criminal Procedure Act 51 of 1977 [7] Section 21 ( see also the following case law THINT (PTY) LTD v NATIONAL DIRECTOR OF PUBLIC PERSECUTIONS AND OTHERS; ZUMA AND ANOTHER v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS 2008 (2) SACR 421 (CC); MINISTER OF SAFETY AND SECURITY v VAN DER MERWE AND OTHERS 2011 (2) SACR 301 (CC) [8] Act 25 of 2002
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