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<strong>Child</strong> PornograPhy First report oF the Dutch NatioNal rapporteur
effective detection on the Internet, particularly the ability to record confidential communication using
a technical device in a home (Article 126l, paragraph 2 of the Dutch Code of Criminal Procedure). 160 To
this end, the potential offence must carry a sentence of at least eight years. The powers thus deployed
in detection may, for example, take the form of fitting a device to a suspect’s computer in order to trace
his/her communications with others. By increasing the sentencing term in this way, the legislator’s aim
was also to convey that the systematic production, distribution and possession of child abuse material
are regarded as serious criminal offences. It should be noted in this regard that the amendment did not
arise out of a necessity that emerged in legal practice to intrinsically re-evaluate the maximum sentence
carried by child pornography offences. Furthermore, the recent evaluation of decency legislation has
confirmed this. 161 In the view of the legislator, the criminal court has sufficient means to impose a sentence
that is appropriate in the case in question.
A number of amendments were made to legislation as a result of the ratification of the Lanzarote
Convention, 162 including amendments in relation to the penal provisions concerning child pornography.
Since January 2010, Article 240b of the Dutch Criminal Code also criminalises the obtaining of access to
child abuse material by means of information and communication technology. 163 This tightening of legislation
was deemed desirable, as the question arose as to whether action could be taken on the grounds
of criminal possession in all cases. It is now also possible to prosecute viewers in cases where it cannot be
proven that they intentionally downloaded child abuse material to the temporary Internet files folder on
the hard drive, 164 for example, but it can be proven that they obtained access with (conditional) intent
to websites featuring child abuse material, whether in the form of images, hyperlinks or live webcam
streams. 165 The amendments to criminal provisions concerning child pornography in Article 240b of
the Dutch Criminal Code are partly the result of new technologies that have enabled those methods of
production and distribution (see §1.2.3 and §1.4.1.2). The offering and acquisition of child abuse material
also became criminal offences within the scope of the same legislative amendments.
Current definition under criminal law
Article 240b of the Dutch Criminal Code contains provisions that criminalise a variety of acts that relate
to child pornography, though the word ‘child pornography’ does not appear as such in the Dutch
Criminal Code. The number of criminal acts listed under Article 240b of the Dutch Criminal Code has
expanded considerably over the past few decades. As we have already seen in previous sections, developments
in both the domain of technology and in international agreements have formed the basis for
the amendments to the provision. Over a period of 16 years, the sentence carried by child pornography
offences has been increased from three months’ imprisonment to (in principle) a maximum of eight
160 Parliamentary Papers II 2007/08, 31 386, no. 3, p.19.
161 Lünnemann et al., 2006. See also §2.2.
162 Lanzarote Convention, 2007.
163 Act of 26 November 2009, Dutch Bulletin of Acts and Decrees 544, entered into force on 1 January 2010
(Dutch Bulletin of Acts and Decrees 2009, 578).
164 Prior to this legislative amendment, an individual could be convicted for viewing child abuse material
via the temporary internet files folder (Van Koppen, 2009, p.99 et seq.)
165 See Koppen, 2009, p.99 et seq. with regard to the question of whether the viewing of child abuse material
has been made a criminal offence by this legislative amendment. The element of gaining access
implies an active act, a behaviour that demonstrates intent.