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The phenomenon of child pornography
containing an image’. Audio, or sound clips, are not in themselves subject to criminal provisions. The
same also applies to texts concerning the sexual abuse of children. Websites on which paedophiles and
paedosexuals share views or describe sexual acts between adults and children do not constitute a criminal
offence by virtue of Article 240b of the Dutch Criminal Code. 173 Similarly, accounts of sex featuring
fictitious children do not constitute criminal offences by virtue of this provision. It appears as if the
freedom of speech prevents this from being the case. 174
The aim of the law is to criminalise behaviour in relation to the material. The behaviour may be directed
towards the production, (forms of ) distribution, possession or obtaining access to a (data storage medium
containing an) abusive image involving a child. The elements that form part of the law and serve to
qualify material as child abuse material are phrased clearly: the material in question must depict sexual
conduct, in which a person who has evidently not yet reached the age of eighteen years is involved or
is apparently involved. 175 The assessment of material on the basis of these elements is somewhat more
complex in practice, however.
‘Sexual conduct’
The image concerned must be an image of ‘sexual conduct’. A question that arises regularly within the
judicial system is what exactly is meant by that term ‘sexual conduct’. 176 This does not have to be actual
physical abuse of a minor but could, for example, also be a photograph of the genitals of a minor,
depending on the manner and situation in which the genitals of a minor are shown. 177 According to
the Implementation Provisions concerning child pornography, the issue of whether or not the image
concerned is an ordinary image of a (whether or not fully or partially naked) child in the family setting
forms the dividing line between an image of a minor that constitutes a criminal offence and one that
does not. An image that is in principle an ordinary image of a fully or partially naked child in the family
setting depicts behaviour that is appropriate of a child of that age and the behaviour was recorded in an
environment and in a context in which the child would normally be found. An unnatural pose and/or
the addition of unnatural attributes render the image unnatural in appearance and (may) result in that
image having to be designated as sexual conduct. 178
In order to determine which material constitutes a criminal offence, the Implementation Provisions
concerning child pornography are based upon the classification below, amongst other criteria. 179 Ma-
173 See for example Parliamentary Papers II 2010/11, Appendix to the Proceedings, no. 2286, in which the
Minister states in response to parliamentary questions that a visit to a paedophile website in itself
does not give rise to a concrete suspicion that an individual is guilty of crimes connected with child
pornography or child abuse.
174 Leukfeldt et al., 2009.
175 See for example Court of Rotterdam, 31 March 2011, LJN: BP9776.
176 See for example Supreme Court, 7 December 2010, LJN: BO6446.
177 Supreme Court, 26 September 2000, NJ 2001, 61: See also the Implementation Provisions concerning
child pornography, Dutch Government Gazette 2 December 2010 no. 19121.
178 Parliamentary Papers II 1994/95, 23 682, no. 5, pp.9-11.
179 The Implementation Provisions concerning child pornography also include aspects such as environment,
nature and context of the image, on the basis of which it can be determined whether the material
constitutes a criminal offence.
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