ARE YOU GUILTY OF SHARING ‘CHILD PORN’?

In June National Prosecuting Agency prosecutor Bonnie Currie-gamwo shocked parents across South Africa when she warned they could be prosecuted for uploading naked images of their children online. “It’s irrelevant what the purpose was for taking the picture. Any image of a naked child is child pornography and the reason for that is quite simple; it can be abused. What you do innocently, others take and they abuse it,” said the state advocate, who has years of experience prosecuting child trafficking cases.

Niresh Ramklass, chief executive of the Cape Town Child Welfare Society, came out in support of the NPA’S stance, saying the law is unambiguous: it is an offence to “depict a child’s body in any manner in which the child may be exploited”, whether that was the intention or not. “That is how our laws are structured because people exploit children through photographs. Unfortunately our society has paedophiles,” he said. But prominent legal experts say it’s not quite as clear-cut as this and that your intention behind the photo is relevant. “To successfully prosecute someone for child pornography, you have to show that there was intention [to use it for child pornography],” maintains media law expert Emma Sadleir.

Professor Ann Skelton, director of the Centre for Child Law at the University of Pretoria, explains this in more detail: “If one looks at the definition of child pornography in the Sexual Offences Act it is very broad, and on the face of it a picture of naked child — even though its intention may not be to stimulate erotic feelings — fits the definition. However, it is important to note that in the case of De Reuck at the Constitutional Court that dealt with a similar definition, the court said it is important to view an image within context: a picture can be for artistic purposes or for ‘fun’ purposes, and the intention of the person taking or posting the picture is therefore relevant. So yes, the NPA might be able to prosecute using this law, but a person who posts a picture with a nonsexual intention would have a good defence, and could challenge the constitutionality of the definition, because it tries to exclude context as a factor.”

It also remains to be seen how the NPA would monitor social media sites and whether it has the resources and capacity to prosecute all parents who post nude photos of their children online. Ann believes that ultimately the decision whether it is wise to share innocently taken nude photos of your children online should be made by each parent. “In my view they should not have to fear the long arm of the law reaching in to their homes to arrest and prosecute them if they do post such pictures.”

Your Baby repeatedly contacted the NPA for clarity on exactly what constitutes a child pornography photograph, how the NPA planned to monitor social media sites and whether the NPA had the resources and capacity to prosecute parents who posted nude photos of their children online. NPA spokesperson Nathi Mncube promised a response but none was forthcoming.