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Where The Law stands on Net porn

Or "making indecent photographs", in legalese

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Many remain confused on the point of law which has recently seen two men sent to prison in high-profile cases for "making" indecent photographs and therefore breaking the Protection of Children Act 1978 - the most famous of which was of course former pop star Gary Glitter. Well, The Register can now give the full legal rundown following publication of the Court of Appeal's reasoning for the case of teacher Jonathan Bowden, a week ago today. Bowden had downloaded and printed out indecent photographs of underage children from the Internet. He was charged with "making" the photos but appealed against the charge, saying that he was only in possession of them and nothing more. The judge rejected his submission and Bowden pleaded guilty, receiving a four-month jail sentence. Lord Justice Otton said that section 1 of the 1978 Act was designed to deal with child pornography above and beyond simple possession. The original wording of the Act uses the verb "take" in reference to the photos. However, following advances in technology, and a series of amendments made to the Criminal Justice Act (which deals with possession of indecent photos), Lord Otton decided that the wording of the 1978 Act referred unambiguously to the "making" of a photograph. The definition of the verb "make" was read from the Oxford English Dictionary and taken to be "to cause to exist; to produce by action, to bring about". Using this definition, the law thus referred to not only original photographs but also negatives, copies and - significantly - data stored on a hard disc. Lord Otton therefore judged that who ever downloaded such images to a disc or printed them out was making them. The 1978 Act was also concerned with halting the proliferation of such images. By downloading or printing images which may well have come from outside the UK was therefore judged to be creating new material since it may not have existed in the UK before. The defendant was therefore found guilty under the Act of making indecent photographs. However, the law does not cover all aspects. Where does it stand, for example, on cached photographs? If you visit a Web site, that site will download pictures etc. onto your hard disk to speed up navigation. As it's on your hard disc, are you guilty of making the photo? This point has yet to be thrash out. However, it seems likely that a person can only be held responsible for "making" photos if he or she has some form of direct action on events - for example, clicking "Save". Since cache is automatically saved to your hard disk and requires no interaction from yourself, it is difficult to see how you could be held responsible for the photo. But if someone then actively takes the photo out of cache to put somewhere else, they will have caused the production of the photo, and may therefore be guilty of making it. ® Full coverage/child pornography

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