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<strong>Child</strong> PornograPhy First report oF the Dutch NatioNal rapporteur
Although legislative history has therefore demonstrated that the boundary was originally intended to be
drawn at real, life-like images, it seems that the Public Prosecution Service is making efforts in any case
to tackle the production, distribution and possession of virtual child abuse material, even if the images
in question do not represent real life. The Implementation Provisions concerning child pornography,
which entered into force on 1 January 2011, once again emphasise the core motivation for criminalising
virtual child abuse material: “<strong>Child</strong>ren must be protected from images that imply sexual abuse, from behaviour that
can be used to encourage or invite children to participate in sexual behaviour, and from behaviour that may form part of
a sub-culture that promotes the sexual abuse of children”. 194 It is partly as a consequence of this notion that the
initiative has been taken in case law to take this criterion in consideration and to also make non-life-like
images subject to the criminal provision. In general, manipulated material cannot be distinguished
from real-life material, as the former is often composed of various images and ‘pasted’ together using
digital techniques. Material that is generated entirely using a computer does not (yet) appear life-like,
due to the current state of technology. However, life-like material that is entirely computer-generated
could form a new ‘grey area’ in detection in the future, 195 since it would be unclear whether the depicted
individual is a real existent child who has been abused. The matter of whether acts in relation to virtual,
non-life-like child abuse material constitute criminal offences has come up for discussion a number of
times in the judicial system, but the number of judgments handed down in this field is still too few as
to enable a consistent line of approach to be determined on the basis of case law. 196
1.4.1.2 The activities – ‘production’, ‘distribution’ and ‘possession’
‘[…]distributes, offers, openly exhibits, produces, imports, conveys, exports, acquires or has possession of […] or obtains
access to such material by means of a computer system or using a communications service.’
Technological developments have not only influenced the nature of the material itself. ICT simplifies
the actions required in order to produce, distribute and possess/view the digital material due to the
increase in the so-called three As: accessibility, affordability and anonymity. 197 The analogue context
194 Implementation Provisions concerning child pornography, Dutch Government Gazette, 2 December
2010, no.19121.
195 O’Donnell & Milner, 2007, pp.91-92. Leukfeldt et al., 2010, p.178.
196 See for example Court of Arnhem, 20 January 2005, LJN: AS3632; Court of Den Bosch, 4 February 2008,
LJN: BC3225; Court of Zwolle, 19 August 2008, LJN: BE9444; Court of Den Bosch, 30 March 2010, LJN:
BL8876; Court of Utrecht, 9 November 2010, LJN: BO3813; Court of Amsterdam, 17 December 2010, LJN:
BO9296; Court of Rotterdam, 31 March 2011, LJN: BP9776.
197 O’Donnell & Milner, 2007, p.36; Taylor & Quayle, p.107. For example, individuals believe themselves
to be anonymous on the Internet, due to the absence of social monitoring, other identities can be assumed
and anonymous messages can be posted. Consequently, individuals are more anonymous to a
certain extent than is the case in the real world. However, without advanced concealment techniques,
computers can generally be traced. According to Stol (2010, p.8-19) this (perceived) anonymity enables
the Internet to create new possibilities for abnormal behaviour: “As people are more anonymous on the
Internet than in the physical world and as the Internet is less subject to monitoring, people behave more abnormally
in cyberspace than they would offline. The question of whether people are in fact more anonymous online than offline
and whether they actually have less reason to be afraid of monitoring online than they would offline is not of particular
importance here. […] If people believe that they are anonymous and if they believe that they are not being monitored, they
subsequently behave as if that were the case.”