International Legal Aspects Of Child Abuse Images

University of Kent

The Role of International Law in Combating Online Child Pornography

By

Joe McNamee

An Essay Submitted to the Brussels School of International Studies Of the Department of Politics and International Relations In the Faculty of Social Science In Partial Fulfilment of the Requirements For the Award of the Degree of Master of Laws in International Law with International Relations Module: Public International Law Brussels 11 January, 2004 Word Count - 4969

Introduction The Internet has created a range of problems for international law due to its semi-borderless environment. These difficulties can be divided into three basic categories: commercial law1, differing content-related laws2 (race hate laws, for example, vary quite widely, even within the European Union) and laws regarding content that is universally regarded as illegal3. Child abuse and online portrayals of it are theoretically illegal in virtually every country in the world. However, despite the existence of apparently comprehensive international legislative instruments, numerous countries are unwilling or unable to even take the comparatively simple step of notifying Internet Service Providers whose equipment (without them necessarily knowing that such material is on their servers) contains the material, thereby enabling them to take it off line. The purpose of this essay is to analyse what effective measures have been taken to combat availability of online portrayals of abuse of children. This paper is only looking at the issue of child pornography in this context and does not offer or imply any opinion regarding the effects of child pornography on society more generally, for example whether the availability of such material leads to more direct forms of abuse by users. The essay looks at how European countries have introduced effective selfregulatory systems in cooperation with Internet service providers and other stakeholders, before looking at the international legal instruments available and what national and international measures have been taken to address this problem. It is important to stress the extreme violence and abuse involved in this material in order to provide some context for the gravity of the subject matter of this essay. However, as even a text description of the activities involved would be unduly disturbing, I would just like to draw attention to the following analysis, which provides a succinct introduction to the seriousness of the offences in question:

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Covering a wide range of issues including advertising, jurisdiction, applicable law, consumer protection, etc. Such points are covered by conventions concluded under the Hague Convention on Private International law, for example. 2 Some harmonisation has been attempted on this point through the Additional Protocol to the Convention on Cybercrime, concerning the Criminalisation of Acts of a Racist or Xenophobic Nature Committed Through Computer Systems. 3 The laws in this category are not always well drafted or effective. For example, the wellintentioned US Child Pornography Prevention Act (1996) was too broadly drafted to be likely to survive when challenged under US free speech laws and consequently failed in Ashcroft v. The Free Speech Coalition, 122 S. Ct. 1389 (2002). At the time of writing, a summary of the judgement can be found at the following URL http://supct.law.cornell.edu/supct/pdf/00-795P.ZS

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“Child pornography is a visual record of serious criminal offences. Even the less extreme examples of child pornography that I saw at New Scotland Yard are records of horrifying abuse4.”

Action in the EU The situation within the European Union provides valuable lessons on how this problem should be dealt with. Within EU countries, there was a comparatively early realisation that expeditious and effective action was needed in order to ensure that such material was not given a safe harbour in the EU, and that offenders be traced and prosecuted, insofar as possible. The first example of effective action was in the United Kingdom, with the launch of the Internet Watch Foundation (IWF – http://www.iwf.org.uk) in 1996. This “hotline”5 fields calls from the public to report inadvertent exposure to illegal or potentially illegal content. The reports from members of the public are analysed by IWF experts who make a judgment as to the illegality of the material. Where the material is illegal and hosted6 in the United Kingdom, a 24-hour contact number is provided by the UK Internet Services Providers Association (ISPA7) that receives the notification and passes it to the relevant Internet Service Provider (ISP), which takes appropriate action, in cooperation with law enforcement authorities, to remove the material from the Internet. The processing of complaints by a third party gives the ISP legal certainty when deleting the information from its web servers, a procedure known as “notice and takedown”. A report is also sent to law enforcement authorities, in order for the appropriate investigation to be launched. The result of this initiative has been a massive reduction in the number of UK websites reportedly hosting potentially illegal information, complaints to the IWF regarding UK sites dropping from 16% of overall complaints in 1996 to less than one per cent in 20048. The success of the IWF in the United Kingdom has been matched by similar initiatives across Europe. The existence of such parallel initiatives means that reports can be communicated between hotlines, greatly increasing their effectiveness. In 1999, the Internet Hotlines Providers in Europe (INHOPE9) association was launched with the support of the European Commission in order to coordinate this cooperation. 4

Sir William Utting, 1997, “People like Us: The Report of the Safeguards for Children Living Away from Home", quoted in Save the Children “Position Paper on Child Pornography and Internetrelated exploitation of Children” 5 For more information about hotlines, Machil, M, and Watermann, J, “Protecting Our Children on the Internet”, Bertlesman Foundation Publishers, 2000. 6 This paper refers only to material “hosted” on web servers (i.e. in the form of “websites” or file repositories from where files can be downloaded such as “file transfer protocol” sites) and not other forms of exchange of such material such as peer to peer, Instant Messaging, e-mail, etc. 7 See www.ispa.org.uk for more information. 8 Statistics quoted in “About the IWF” - http://www.iwf.org.uk/public/page.103.htm 9 http://www.inhope.org

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The eCommerce Directive The “notice and takedown” approach in the European Union was bolstered by the adoption in 2000 of the Directive on Certain Legal Aspects of Electronic Commerce (Directive 2000/31/EC), which grants Internet access providers and Internet hosting providers immunity from prosecution for hosting illegal content until such time that they have “actual knowledge” of the illegality of material on their equipment. Article 14 of the Directive deals specifically with “hosted”10 material. This protection, together with the legal certainty provided by official notices from hotlines, is enthusiastically supported by companies providing hosting services – who frequently are involved in the establishment of hotlines – as well as all other stakeholders. This point must be stressed: “notice and takedown” is not a process imposed by government on unwilling stakeholders, it is a process enthusiastically supported and encouraged by all sides. This inclusive approach is key to the success of notice and takedown.

International Legal Instruments on child abuse UN Convention on the Rights of the Child11 Every recognised state in the world has signed, and all but two (USA and Somalia) has ratified the UN Convention on the Rights of the Child. These states signed up to a variety of clear commitments including, for example, to take “all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence[…], maltreatment or exploitation, including sexual abuse while in the care of parent(s), legal guardian(s) or any other person who has care of the child” (article 19.1). Despite this unequivocal commitment, many countries have not alone failed to follow the tried and tested example of European countries in instituting hotlines and ISP “notice and takedown” systems, but several also do not generally act when given notices from hotlines in other countries – leaving child abuse images online and perpetrators unpunished. USA, Brazil and Russia are reputedly the worst offenders12. It is not, however, only those countries which do not take adequate action within their own jurisdictions which could be considered to be in breach of the Convention. All Parties to the Convention are obliged by article 34c to:

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See footnote 7 Which was opened for signature, ratification and accession by UN General Assembly Resolution 44/25 of 20 November, 1989 12 Carr, J, “Global Solution needs a Global Problem”, The Guardian, 15 November 2004 11

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“protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, State Parties shall in particular take all appropriate national, bilateral and multilateral13 measures to prevent: c. The exploitative use of children in pornographic performances and materials.” Thus, failure to take action nationally is a breach of the Convention, but failure to take action internationally should also be considered to be a breach. The UN Committee on the Rights of the Child is the body responsible for monitoring implementation of the Convention. It reports14 that no State Party has ever, within the monitoring process that is supposed to ensure compliance with the Convention, raised the problem that another country has not taken action to take child pornography off line when information regarding that material has been made available to them. Any inaction contrasts with the clear requirement placed on State Parties to take all appropriate bilateral and multilateral measures to act to protect children from sexual exploitation and sexual abuse and contradicts statements from the highest levels in governments around the world. As just one example, a UK Home Office Minister claimed in 2003 that “the government [is] committed to tackling child pornography on the Internet”15. However, in response to a Parliamentary question in December 2004, UK Home Office Minister Bill Rammell stated that no request had ever been made to a foreign government asking for the removal of child pornography16. The fact neither Britain nor, apparently, any other country, has never made such a request appears therefore to be point to widespread failure to respect article 34c of the Convention. Responsibility of States for Internationally Wrongful Acts17 The responsibility of states for inaction is also explained in the commentaries on the Articles on “Responsibility of States for Internationally Wrongful Acts” adopted by the International Law Commission of the United Nations in 2001. The Articles make it clear that failure to act can be, of itself, an internationally wrongful act. This is expressed in Article 2b18 and clarified in the commentaries. Failure to act in response to official notifications from hotlines in other countries means that the illegal material stays online. This means that citizens will continue to run the risk of stumbling across it while the illegal downloading of the material by those consumers for which it is intended will continue to be facilitated. 13

Emphasis added In e-mail correspondence between the author and the Committee secretariat. 15 Hansard, United Kingdom Parliament, Column 1210W, Line 127791, 6 October, 2003 16 Not yet published in Hansard at time of writing 17 Adopted by the International Law Commission, 53rd Session, 2001 18 “There is an internationally wrongful act of a State when conduct consisting of an action or omission constitutes a breach of an international obligation of the State”. 14

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Failure by countries such as Russia and Brazil to implement effective child pornography legislation or self-regulatory mechanisms unquestionably falls within the scope of the Articles on Responsibility of States for Internationally Wrongful Acts. The Commentaries describe the scope of state responsibility as follows: “conduct attributed to the state at the international level is that of its organs of government, or of others who have acted under the direction, instigation or control of those organs, i.e., as agents of the State”. Knowingly and willingly leaving portrayals of child abuse available online in the global Internet clearly constitutes passive participation in the market for electronic portrayals of child abuse and consequently must be considered an “internationally wrongful act” within the terms of the draft articles. The commentaries state “cases in which the international responsibility of a State has been invoked on the basis of an omission are at least as numerous as those based on positive acts, and no difference in principle exists between the two”19. It is also uncontestable that the failure to effectively prohibit child pornography creates markets for such material, which will lead to child abuse (i.e. creation of those images to target that market) both in that country and abroad. For example, lax laws in Canada would encourage the creation of abuse images in Brazil to feed that market as described by Judge Southin in the judgment detailed on page 6. This further supports the concept that failure by any one country to have effective laws and procedures in place can be categorised as an internationally wrongful act on a global scale. The actions of the European Union and its Member States serve as valuable contrast in order to demonstrate the failures described above. Within the European Union, a harmonising instrument to establish standardised minimum levels of restrictions on child pornography was introduced into law through the Council Decision of 29 May, 200020 to combat child pornography on the Internet. Unsurprisingly, the Decision has proven uncontroversial since its implementation. Ratification and Implementation of the UN Convention The United Nations Committee on the Rights of the Child is responsible for monitoring how well State Parties implement the Convention. In principle, the procedures of the Committee appear robust, requiring State Parties to report to it initially after two years and then every five years. The Committee also receives reports from relevant non-governmental organisations (NGOs). However, it has proven impossible during research for this paper - which has included interviews with government officials, non-governmental organisations, hotlines and the Committee secretariat - to find any evidence of any state party or any NGO in 19

Paragraph 4 of the Commentary on Article 2 Elements of an Internationally wrongful act of a state. 20 Council Decision of 29 May, 2000 to combat child pornography on the Internet (2000/375/EC)

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any country raising or intending to raise the issue of inadequate legislation or procedures in their submissions to the Committee. However, Canada did raise its rectifications of its legislation and procedures during the monitoring process, as we shall see in the case study below. A range of inadequate laws and court decisions in countries which claim to have ratified the Convention raise the most fundamental of questions regarding the credibility of how the Convention is respected and enforced. I will use Canada as a case study to illustrate this point, as Canada identified, acknowledged, and is in the process of resolving problems with its procedures with regard to child pornography. Case Study: Canada Canada signed the Convention in 1990 and ratified 1991. However, several court judgments suggest that Canadian law did not comply with the Convention. For example, both the British Columbia Supreme Court21 and the British Columbia Court of Appeal acquitted a defendant for possession of violent pornographic material involving children. Indeed, in that case, Madam Justice M.F. Southin22 specifically rejected the concept that Canada had international obligations in this field stating afterwards that “some of these people, […] isn't it a fair assumption that they did it for money? What right do we have pontificating about what street kids do in Brazil?"23. It seems a reasonable extrapolation that Justice Southin does not believe that any Canadian statute existed at that time to implement key aspects of the Convention, including: “Article 3 – In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative bodies or legislative bodies, the best interests shall be the primary concern24. Article 34 – State Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, State Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: a. The inducement or coercion of a child to engage in any unlawful sexual activity; b. The exploitative use of children in prostitution or other unlawful sexual practices;

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The Crown vs John Robin Sharpe, 1998 Member of the Supreme Court since 1985 and Court of Appeal since 1988 23 Widely quoted, inter alia in Matas, R, “Attitudes toward child porn could change, B.C Judge Says”, The Globe and Mail, Tuesday 27 April, 1999. 24 Emphasis added

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c. The exploitative use of children in pornographic performances and materials.” This case followed the second review of Canada’s implementation of the Convention – and therefore was not addressed by it. In response to the UN questionnaire preparing Canada’s third report25, the Canadian authorities describe extensive new laws, including a “notice and takedown” regime for child pornography. The inclusion of this information in the Canadian report provides hope that the anomalies in Canada’s respect for the Convention are being definitively addressed and also implies an acceptance on Canada’s part that such laws are indeed necessary in order to be in compliance with the Convention.

Exploiting exploitation? We have shown that effective action can be taken, in cooperation with hotlines and Internet Service Providers, to reduce availability of online depictions of child abuse. However, we have also seen that countries which claim to have ratified the Convention fail to take action to combat online portrayals of child abuse. In this context, it is all the more incomprehensible that countries which have been at the forefront of producing effective legislation and self-regulatory measures have seen no need to use international legal instruments such as the UN Convention in order to improve the global situation, but nonetheless have drafted or supported new international legal instruments which claim to be new solutions to the problem. EU Draft Framework Decision on Data Retention26 Two responses to Parliamentary questions in the United Kingdom parliament in 2004 providing interesting background on this proposal. UK Minister Paul Goggins27 said in March 2004 that we cannot be “certain how many sites hosted outside the UK have been closed down following reports originating within the UK”,28 before admitting that the UK government does not even know what illegal sites remain on line in other countries: “For images of child abuse hosted overseas the information is passed to IWF's counterparts and law enforcement

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Responses of Canada to “List of issues to be taken up in connection with the consideration of the second periodic report of Canada (CRC/C/83/Add. 6) by the United Nations Committee on the Rights of the Child”, in particular PP 146-147 26 “Data Retention” means a requirement on communications service providers (telephone companies, Internet providers, etc) to retain records of all communications on their networks. There has been considerable pressure to introduce such a measure in the EU as a measure to combat serious crime and terrorism, even though the value of such a measure has never been effectively argued by its supporters. 27 Secretary of State for the Home Department 28 Hansard, United Kingdom Parliament, Column 1008W, Line 161335, 25 March, 2004

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agencies in those countries and there are no statistics on how many of these sites have been closed down”29. Bearing in mind that the UK authorities pay such little attention to the illegal material signaled to law enforcement authorities in other countries, it is somewhat perplexing that the UK and others, having failed to take any significant action under existing international law, feel the need to tag child pornography provisions onto new international instruments. This raises an obvious question as to whether references to child pornography in new instruments are born out of some sort of reflex to create new instruments where existing ones have not been used, or whether child abuse is a useful “hot button” to use as a battering ram to push through legislation that otherwise would be opposed more strongly for civil liberties reasons. The data retention proposal provides a clear illustration of this. The United Kingdom, together with France, Sweden and the Republic of Ireland proposed through the EU Council of Ministers a far-reaching proposal to require all EU communications service providers to retain records (and, due to sloppy drafting, probably multiple copies of the records in multiple locations30) of every communication through every electronic communications service by every citizen in EU jurisdiction for a period of at least one year. The draft published in April 2004 is quite clear regarding its importance with regard to child pornography: “In particular, it is necessary to retain data in order to trace the source of illegal content such as childpornography [sic] and racist and xenophobic material31”. However, we have already seen above that, when details of the sources of illegal material are delivered to UK government, it does not feel the need even to check to see if the authorities in the country of origin of the material acts on the information relayed to it32. In November 2002, only 18 months before the above proposal was tabled, a questionnaire33 was sent from the Council of the European Union to Member States. In response to the question, “Have you received any34 reports from your law enforcement authorities that have indicated an obstruction of their work due 29

Hansard, United Kingdom Parliament, Column 1556W, Line 174833, 25 May, 2004 It would be exceptional for an Internet communication to pass through only one network. Requiring all providers to retain details of all communications will require, by definition, records of each communication to be held in at least two or more locations. 31 “Draft Framework Decision on the retention of data processed and stored in connection with the provision of publicly available electronic communications services or data on public communications networks for the purpose of prevention, investigation, detection and prosecution of crime and criminal offences including terrorism”. Council of the European Union document reference 8958/04, 28 April 2004 32 Hansard, 25 March 2004 33 Responses to the Questionnaire were collated in a Note from the Council of the European Union to the Multidisciplinary Group on Organised Crime, dated 20 November 2004. This has not officially been published but is widely available online 34 Emphasis added 30

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to the non-existence of appropriate legal instruments concerning traffic data retention”, Ireland said “no”, while Sweden said that its “present national procedures work well” Of the four sponsors of the Draft Framework Decision, two claimed only 18 months before tabling their proposal that they had no need for such a measure, while a third admits to not paying attention to what happens to known sources of child pornography in foreign jurisdictions. It appears reasonable to suggest that child pornography is mentioned in the proposal on data retention as a way of reducing opposition to the proposal rather than any real hope that it could be effectively used for the stated purpose. Council of Europe Cybercrime Convention The United States, (which has not ratified the UN Convention on the Rights of the Child), Canada (whose ratification of the Convention is discussed above) and Japan (the “most important centre for child pornography”35 in Asia) were major contributors36 in the drafting of the Council of Europe Cybercrime Convention, which was opened for signature in Strasbourg in Budapest on 23 November 2001. The Convention deals with international cooperation regarding computerrelated crime, providing some valuable definitions regarding unauthorised access to computer networks as well as extensive rules concerning storage of and access to communications and traffic data. Article 9 of the CoE Convention aims to outlaw the production, offering, distribution, procuring and possessing of child pornography as well as definitions of what constitutes “child pornography”. One has to wonder why Article 9 is in the Convention. The provisions of the UN Convention of the Rights of the Child, requires all necessary action to be taken to protect children, while the additional protocol to the UN Convention on “the sale of children, child prostitution and child pornography37” (which has not, to date been ratified by, among others Japan, Australia or the United Kingdom) establishes specific obligations, so there is hardly a lack of provisions in international law. So, faced with the opposition of civil liberties organisations and industry to the CoE Convention, we have to ask if it was politically astute to include an ultimately meaningless provision on child pornography rather than to ensure implementation of the UN Convention that already aimed to deal with the issue?

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Healy, M.A., “Child Pornography – An International Perspective”, United States Embassy, August 2002. 36 United States Department of Justice, “Frequently Asked Questions and Answers, Council of Europe Convention on Cybercrime”, November 10, 2003. Online publication (www.usdoj.gov) 37 Optional Protocol on the Rights of the Child on the sale of children, child prostitution and child pornography. Adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/54/263 of 25 May 2000 entered into force on 18 January 2002

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Pennsylvania blocking order Perhaps the most crass example of apparent exploitation of child abuse for political gain was the order by Pennsylvania’s attorney general Mike Fisher to WorldCom to block access to specific child pornography sites hosted outside the USA. While the issue of blocking of access to illegal material is discussed in more detail below, the following facts make this case quite extraordinary: 1. The order was made in September, 2002, only weeks before Mike Fisher was due to stand as a candidate for Governor of Pennsylvania. 2. The choice of WorldCom from all the Internet access providers was politically astute, due to the WorldCom accounting scandal which became public only weeks earlier. 3. Leading and former monopoly communications provider Telefónica hosted some of the sites involved in Spain, which has a child pornography hotline. This means that, rather than taking days and weeks to prepare a case against WorldCom, the Attorney General simply needed to pick up the telephone to have the information removed globally from the Internet. The effectiveness of the actions and intended results of the Attorney General and of WorldCom bear comparison: a. Attorney General: Wished to simply block the material for consumers within his jurisdiction, leaving the material on line for all other consumers, did not inform the Spanish authorities and therefore left the material available for both for his own constituents and globally during the preparation and implementation of the order against WorldCom. b. WorldCom: Contacted Telefónica immediately, had the material removed from the Internet, making it inaccessible worldwide and facilitated the appropriate police investigation to take place. Regardless of the politics of the case, it is a fact that the failure of the Pennsylvania Attorney General to contact Telefónica directly resulted in child pornography being left online for longer than would have been the case if he had contacted them or the hotline directly. While the USA has not ratified the UN Convention, it has signed it. On the basis of Article 18 of the Vienna Convention on the Law of Treaties, which obliges states to “refrain from acts which would defeat the object of the treaty when it has signed the treaty”, it seems clear that the actions of Mr. Fisher were in breach of United States’ obligations as a signatory of the Convention regardless of its ratification status. Blocking orders were based on the Pennsylvanian “Internet Child Pornography Act”. However, the blocking measures were easily defeated and numerous entirely innocent sites were also blocked due to the limitations of blocking technologies. Indeed, according to the ISPs involved, 2,900 websites were

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blocked for each child pornography site targeted38. Crucially, in deciding that this “massive suppression” of free speech (referring to the one an a half million innocent websites blocked in attempts to block four hundred apparently illegal sites) was unacceptable, the US District Court found that there was “little evidence that the Act has reduced the production of child pornography”39.

The “Ostrich Approach” In 2004, British Telecom (BT) introduced a system called “Cleanfeed”, which uses the IP addresses40 identified by the Internet Watch Foundation to create a filtering system to prevent BT customers from accidentally viewing illegal material. It is worth noting that this approach to filtering is far from perfect and will only prevent accidental viewing of such sites – i.e. the market which is being fed by the illegal material remains in place and therefore the abuse will continue. The reaction to this initiative was very strongly positive both from the child protection charity NCH41 and from the highest levels of British government, with Prime Minister Tony Blair explicitly supporting the initiative during Prime Minister’s Questions42. As we have seen, there is a lack of effort to ensure that the UN Convention on the Rights of the Child is implemented in a way that combats the production and availability of online portrayals of child abuse. Indeed, despite every country in Europe having signed up to the Convention and, with it, the obligation to take all appropriate national, bilateral and multilateral measures to prevent43 such abuse, few such measures have been taken. So, what exactly would happen if every ISP in, say, the United Kingdom adopted this technology as the Prime Minister appears to want? 1. The filter is quite easy to work around; therefore there would be no significant reduction in the amount of deliberate access to the blocked sites. 2. Access would continue as normal to sites not yet included in the filter.

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American Prosecutors’ Research Office, “Federal Court Invalidates First State Attempt to Curb Child Pornography on the Internet”, no date on online document, available at time of writing at http://www.ndaa-apri.org/apri/programs/ncpca/update_express_sept_2004.html 39 Center for Democracy and Technology vs Attorney General of the Commonwealth of Pennsylvania, 10 September 2004 40 Every device attached to the Internet normally has a distinct address called an “Internet protocol address”, which allows it to be located on the Internet. 41 Hales, P “BT – The Secret Policeman”, Computer Buyer Magazine, 27 August 2004 42 Hansard, United Kingdom Parliament, Column 327, between line 185298 and line 185299 , 21 August, 2004 43 Article 34

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3. The technology, if successful, would permit countries such as the UK where the problem has been minimised to effectively “turn a blind eye” to abuses elsewhere in the world, reducing the already insufficient political pressure for implementation of effective multilateral solutions as required by Article 34 of the UN Convention. There appears to be a clear danger that such a measure will reduce pressure in developed countries to take effective action internationally to deal with this problem. Blocking, even if it worked effectively, would leave the material on line, leave the victims unprotected and the perpetrators unpunished. It would serve only to create the impression that the problem is less widespread than it is. Accepting the premise, Tony Blair’s support for its introduction would, of itself, be a breach of Article 3 of the UN Convention which requires that, “in all actions concerning children […] the best interests of the child shall be the primary concern”44. Oddly, some UK child protection charities have supported the introduction of Cleanfeed, while none have demanded that the UK take action under the provisions of the UN Convention. “Unenforceable International Law”? Even the most fundamental points of International Law appear to be useless in preventing abuses, prompting Thomas Franck to suggest that, for example, “the UN Charter today bears little more resemblance to the modern world than does a Magellan map”45. Is there really any basis on which to base hope that international law in general, and instruments such as the UN Convention on the Rights of the Child in particular, can be used effectively to deal with specific problems such as child protection, even when states have signed up to specific obligations? A cursory glance at the vigour with which some countries insist on the enforcement of certain other international obligations suggests that such a hope is not entirely utopian. Intellectual Property On 10th November, 2004, the European Commission launched a major initiative to ensure respect for enforcement of intellectual property rights (IPR) in non EU countries with the promise of help in the form of technical coordination and assistance and the considerable threat that it would not “hesitate to trigger all bilateral and multilateral sanction mechanisms against any country involved in systematic violations”46 of international obligations, including the TRIPs (Trade

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Emphasis added Franck, T.M., “Who Killed Article 2(4)? or: Changing Norms Governing the Use of Force by States”, The American Journal of International Law, Vol. 64, No. 4. (Oct., 1970), p. 810 46 European Commission Press Release, ‘EU strengthens fight against piracy and counterfeiting beyond its borders”, 10 November, 2004 45

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Related aspects of Intellectual Property47”) agreement of the World Trade Organisation. Bearing in mind that Russia is one of the most problematic countries with regard to the hosting of child abuse images, it is interesting to note that outgoing Commissioner Pascal Lamy promised Russia 61 million Euro in assistance for accession to the World Trade Organisation (under whose auspices the TRIPS agreement is administered), to be “supplemented by other TACIS48 projects in a wide range of other subject areas relevant to the WTO”49. In contrast, the Safer Internet Plus50 project of the European Commission aimed at promoting further hotlines, as well as combating racism and unsolicited commercial e-mail has a proposed budget of 50 million Euro to be spread over four years51 and 25 countries. While the status of copyright in the legal framework of the European Commission is more significant than that of online child protection, this example does seem to indicate a problem with the priorities being set. As one European Commission expert said in an interview for this paper, it would appear that fake Cartier watches are more important for the European Commission than child pornography. Indymedia On 7 October, 2004, a US hosting company, Rackspace.com was served with a subpoena pursuant to Article 28 of the US Code collection52 and an unspecified Mutual Legal Assistance Treaty (MLAT53), to hand over as “part of an ongoing criminal terrorism investigation”54, equipment on which Independent Media Center (IMC, known as Indymedia, an independent media organisation offering “grassroots independent news coverage”) was hosted. Servers in the United States and also servers physically located in London in the United Kingdom were handed over by Rackspace to the US authorities. This resulted in all Indymedia websites and numerous unrelated websites being “off line” until the equipment was returned.

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See http://www.wto.org/english/tratop_e/trips_e/trips_e.htm Tacis is a grant-financed, technical assistance scheme to twelve countries in Eastern Europe and Central Asia. See http://europa.eu.int/comm/external_relations/ceeca/tacis/ 49 Lamy, P, “WTO accession : What's in it for Russia ?” Speech at the Roundtable : 'Russia, the International Economy and the WTO', Moscow, 30 March 2001 50 Safer Internet provides funding for activities to deal with illegal and harmful content on the Internet 51 European Commission Press Release, “European Commission proposes stepping up EU action to combat child porn, racism and spam on the internet”, 12 March, 2004. 52 US Code Collection, Article 1782, “Assistance to foreign and international tribunals and to litigants before such tribunals” 53 Treaty with the United Kingdom on Mutual Legal Assistance on Criminal Matters, 6 January, 1994 54 Government’s Response to Motion to Unseal”, United States District Court, Western District of Texas, San Antonio Division, November 9, 2004. No. SA-04CA0676-OG 48

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This case shows the level of action that can happen when political will exists, as opposed to the examples of web servers in the USA (where 55% of the sites that provoke allegations regarding illegal content is based according to the UK Internet Watch Foundation55) and elsewhere being left online both in the US and elsewhere. Conclusions It appears clear that the European example of Internet hotlines has proven successful and uncontroversial. Adding the international legal instruments in force within the EU, such as the E-Commerce Directive, and the cooperation between hotlines permitted by INHOPE, we can see that effective action can be taken at an international level to address the serious problem of online portrayals of child abuse. The UN Convention on the Rights of the Child has been in force for fourteen years and, places all necessary requirements on state parties to take effective action in relation to abuses such as child pornography and has oversight measures in order to ensure that stakeholders can raise concerns regarding the adequacy of child protection measures. The behaviour of all actors is bewildering. Face with “horrifying abuse”56, how can countries not use the positive European experience of hotlines to protect the weakest members of their societies? How can the European (and other) countries that have taken positive action nationally not put effective pressure on other countries to follow suit? How is it possible that no NGO has raised the lack of hotlines or effective child protection laws in countries such as Russia or Brazil during the UN monitoring process? There appears to be limited political will to take the hard decisions to require countries with inadequate procedures and laws to finally take appropriate action and a cynical interest in using this real problem as a public relations tool whether for sound bites or as a way of pushing through unpalatable legislation.

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Significant Trends 2003, Internet Watch Foundation. During interviews I have conducted in my research, some concerns were expressed by independent experts that this figure may be somewhat exaggerated due to the methodology used by the IWF. However, even if this criticism is justified, but this does not undermine the basic point being made. 56 Sir William Utting, Op cit

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Bibliography American Prosecutors' Research Office, "Federal Court Invalidates First State Attempt to Curb Child Pornography on the Internet" Online publication (hwww.ndaa-apri.org) Carr, J, "Global Solution needs a Global Problem", The Guardian, 15 November 2004 European Commission Press Release, "European Commission proposes stepping up EU action to combat child porn, racism and spam on the internet", 12 March, 2004 European Commission Press Release, 'EU strengthens fight against piracy and counterfeiting beyond its borders", 10 November, 2004 Franck, T.M., "Who Killed Article 2(4)? or: Changing Norms Governing the Use of Force by States", The American Journal of International Law, Vol. 64, No. 4. (Oct., 1970), p. 810 Hansard, United Kingdom Parliament, Column 1210W, Line 127791, 6 October, 2003 Hansard, United Kingdom Parliament, Column 1008W, Line 161335, 25 March, 2004 Hansard, United Kingdom Parliament, Column 1556W, Line 174833, 25 May, 2004 Hansard, United Kingdom Parliament, Column 327, between line 185298 and line 185299 , 21 August, 2004 Hales, P "BT - The Secret Policeman", Computer Buyer Magazine, 27 August 2004 Healy, M.A., "Child Pornography - An International Perspective", United States Embassy, August 2002 Lamy, P, "WTO accession : What's in it for Russia ?" Speech at the Roundtable : 'Russia, the International Economy and the WTO', Moscow, 30 March 2001 Machil, M, and Watermann, J, "Protecting Our Children on the Internet, Bertlesman Foundation Publishers, 2000 Matas, R, "Attitudes toward child porn could change, B.C Judge Says", The Globe and Mail, Tuesday 27 April, 1999

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Significant Trends 2003, Internet Watch Foundation. Online document (www.iwf.org.uk) Utting, Sir William, "People like Us: The Report of the Safeguards for Children Living Away from Home", UK Stationary Office, 1997

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