Internet Watch Foundation

DISCUSSION DRAFT

This memorandum identifies when protection will be provided to those using the internet are likely to face jeopardy for criminal offences whilst helping to combat the creation and distribution of images of child abuse.

This memorandum has been created within the context of child protection, which will always take primacy.

 

The Protection of Children Act 1978 (the 1978 Act) prohibits at Section 1(1)(a) the "taking or making" of an indecent photograph or pseudo-photograph of a child. Making includes the situation where a person downloads an image from the Internet, or otherwise creates an electronic copy of a file containing such a photograph or pseudo-photograph.

To be an offence, such "making" must be a deliberate and intentional act, with knowledge that the image made was, or was likely to be, an indecent photograph or pseudo-photograph of a child (R v Smith and Jayson, 7th March 2002 ).

The Sexual Offences Act 2003 includes at section 46 an amendment to the 1978 Act of creating a defence to a charge of "making". A defence is available where a person "making" such a photograph or pseudo-photograph can prove that it was necessary to do so for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings.

This reverse burden is intended to allow those people who need to be able to identify and act, to deal with such images. It also creates a significant obstacle to would-be abusers and those who exploit the potential of technology to gain access to paedophilic material for unprofessional (or personal) reasons.

It is important, therefore, to protect people whose legitimate duties expose them to potentially illegal material, so that they are able to report it with confidence to the appropriate authorities, whether that be the police or the Internet Watch Foundation (IWF).

 

Purpose of the Memorandum of Understanding

This memorandum provides further guidance to the Police Service, CPS, organisations and those involved in the industry, in order to create the right balance between protecting children and effective investigation of offences. The Police Service and industry have worked hard to create an excellent working partnership between themselves and interested organisations. The fight against this kind of crime would be damaged if unnecessary prosecutions were initiated resulting in loss of confidence in the industry.

This memorandum therefore sets out, briefly, the major factors that the police and CPS consider, will be relevant to a decision on how to proceed in a particular case. It focuses on the new defence to "making" but inevitably there are links to the existing offences of distribution and possession of such indecent photographs, and their associated defences. In general, if the handling of a particular photograph satisfies the tests set out below, it is highly unlikely that it would not be in the public interests to embark on a prosecution.

 

Whilst the facts of each case will be different the issues below identify when protection will be offered. The factors below indicate what may have been the intentions of individuals when they "made" a particular indecent photograph.

It is the combination of all the circumstances that will guide investigation and prosecution decisions. Where the authorities are satisfied that the facts indicate that the intention of the "making" was genuinely to prevent or detect crime under the 1978 act a prosecution would not be pursued, because the defence would apply.

It may be appropriate for service providers to be given written advice covering future conduct that would help avoid suspicion or interference with police investigations, particularly where the issues concern downloading from the internet. Ignoring such advice would be taken into account in prosecution decisions as to sufficiency of evidence and public interest should the issue arise again.

Information service providers would be expected to have written policies setting out explicit instructions to their staff on how to handle potentially illegal content. This would include appropriate training.

Where the intention of the "making" was genuinely carried out by the person acting in their professional capacity in order to prevent or detect specific crime under the 1978 act the exception under section 46 of the Sexual Offences Act 2003 will apply and there will therefore be insufficient evidence to prosecute. If in exceptional circumstances the section 46 defence did not apply to someone operating in a professional capacity then it still may not be in the public interest to prosecute (for example if a systems administrator committed a purely technical breach of guidance or protocols).

 

This Memorandum of Understanding would not apply to members of the public who undertake their own investigation without prior written consent outside the bounds of the principles below. It is in the public interest to prevent vigilantism.

Principles affecting the decision whether to accept a claim that "making" was covered by the new defence:

Sometimes information service providers handling considerable traffic or particular services may seek further guidance. Specific written authorities to undertake particular work in support of the legislation can be given by officers acting on behalf of a chief officer (ACPO). This will give additional certainty to individuals and organisations who are likely to need, frequently, to "make" indecent photographs and, provided the conditions were adhered to, such activities would not be subject to a criminal investigation as it would not be in the public interest to prosecute.

These authorities might specify people, departments or organisations (such as IWF) to handle material specific to an individual investigation or for a wider remit.

The authority will outline that it is given subject to it being

The IWF is funded by service providers, mobile network operators, software and hardware manufacturers and other associated partners. It is supported by the Police and CPS and works in partnership with the Government to provide a 'hotline' for individuals or organisations to report potentially illegal content and then to assess and judge that material on behalf of UK law enforcement agencies. It also exists to assist service providers to avoid abuse of their systems by distributors of child abuse content and to support law enforcement officers, at home and abroad, to detect and prosecute offenders.

If potentially illegal content is hosted in the UK the IWF will work with the relevant service provider and British police agency to have the content ‘taken down’ and assist as necessary to have the offender(s) responsible for distributing the offending content detected.

In cases where the potentially illegal content is hosted outside the UK, the IWF will work in partnership with hotlines across the world and various Law Enforcement bodies at home and abroad to have the content investigated.

For the avoidance of doubt, the IWF assesses and traces potentially illegal child abuse content if it is judged to contravene UK law irrespective of where the content originated.

Service Providers and Police Agencies are provided with a dedicated and streamlined ‘internet’ reporting mechanism to the IWF.

Members of the public who are exposed to indecent images of children can report their exposure by either, telephone, mobile, fax or preferably through an ‘Internet hotline’ at http://www.iwf.org.uk

Each Police force will have a single point of contact with service providers. Information on how to report crime is available on police websites