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.

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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,

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