ARE YOU GUILTY OF SHAR­ING ‘CHILD PORN’?

Your Baby & Toddler - - Talking Point -

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.

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