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The phenomenon of child pornography
which in practice can result in a broad interpretation. The term ‘child pornography’ is not defined, is too
vague or does not distinguish between adult pornographic material in general and child abuse material.
It seems that European countries are taking clear-cut steps – as a result of the instruments of the Council
of Europe and the EU – to criminalise both real-world and simulated acts, whilst this is still a highly
controversial issue outside of Europe. Despite the fact that in many cases the perpetrators are individuals
who are in close contact with children, the majority of the legislation analysed does not contain any
specific penal provisions with regard to the abuse of a recognised position of trust or custody of a child
or influence upon him/her, including within the family. The application of existing provisions is limited
in some countries by controversial conditions, for example, that the victim is a female minor, that the act
took place against the will of a minor, that the perpetrator must be at least 18 years of age, that violence
or intimidation must have been involved, or that an ‘indecent act’ involving violence was committed. 154
At present, there are still some countries that do not have any specific criminal legislation in place
concerning child pornography. According to the most recent inventory drawn up by the International
Centre for Missing & Exploited <strong>Child</strong>ren (ICMEC), this is the case in as many as 89 of the 196 countries
that were studied. 155 Of the countries that do have any specific national legislation in place, 52 countries
do not define the term ‘child pornography’ in a separate statutory penal provision, 18 countries do not
include any computer-related (and particularly Internet-related) offences in their criminal legislation,
and 33 countries have criminalised intentional possession without intent to distribute the material. 156
According to this inventory, only 45 countries have legislation in place that can actually be used to tackle
child pornography, as they fulfil the criteria set by the ICMEC. The Netherlands is regarded as one of
those countries. Only eight countries fulfil all the criteria set in this report, namely Australia, Belgium,
Columbia, France, Italy, the Philippines, South Africa and the United States of America. 157 A fifth criterion
concerns ISPs that are required to report child abuse material to the police or another mandated agency.
In the Netherlands, ISPs are not obliged to report material, although a practice to report and remove
child abuse material exists (see §3.8). 158
Recent legislative amendments
In 2009, the maximum sentence in Article 240b, paragraph 2 of the Dutch Criminal Code was increased
from six to eight years. 159 This created the possibility of deploying greater powers that are important in
154 C. Schulman, Council of Europe, ‘Working on ratification and implementation of the Council of Europe
Convention on the Protection of <strong>Child</strong>ren Against Sexual Exploitation and Sexual Abuse (CETS
No. 201) – progress to date’. ERA: Fighting Cybercrime and <strong>Child</strong> <strong>Pornography</strong> on the Internet, Lisbon,
17-18 March 2011.
155 The countries concerned include the Netherlands Antilles, certainly prior to the political changes that
took place on 10 October 2010. ICMEC, 2010, p.25. Cf. Beech et al., 2008, in which the authors state,
amongst other points, that in the approach taken by the ICMEC (that punishments for these types of
offences must act as a deterrent and must therefore be imposed stringently) potential alternatives such
as (clinical) treatment are not taken into account.
156 “Criminalizing the knowing possession of child pornography may not only curb industry growth but also prevent further
incidents of sexual abuse.” ICMEC, 2010, p.3.
157 ICMEC, 2010, p.111.
158 ICMEC, 2010, p.25 no.61.
159 Entered into force on 1 July 2009, Act of 12 June 2009, Dutch Bulletin of Acts and Decrees 245.
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