Criminal Justice and Immigration Act 2008: Section 63

The IWF's role regarding government legislation on the possession of extreme pornography

Background
 
The Internet Watch Foundation (IWF) was formed in 1996 following agreement between the government, police, and internet industry that a partnership approach was needed to tackle the online distribution of indecent images of children and criminally obscene adult content in the UK. Since then interest in and support for our work has grown considerably and our members now include internet service providers, mobile phone operators, search providers, filtering and software companies, the financial sector, and others.
 
The IWF is an independent self-regulatory body. It is governed by a Board of ten Trustees consisting of an Independent Chair, six independent Trustees and three industry Trustees. The Board monitor, review and direct the IWF’s remit, strategy, policy and budget to enable the IWF to achieve its objectives.
 
We operate an internet ‘Hotline’ for the public and IT professionals to report their inadvertent exposure to potentially criminal child sexual abuse content hosted around the world and criminally obscene adult content hosted in the UK. We provide a national ‘notice and take-down’ service to any service provider hosting such content in the UK.
 
Our role is confined to interpreting relevant legislation to ensure potentially criminal online content within our remit is traced, reported, and removed wherever possible. We work in partnership with our members and stakeholders, the public, law enforcement agencies, government departments, and, as a result of this collaborative approach, UK-hosted unlawful content within our remit has been virtually eradicated.
 
Criminally Obscene Content and Extreme Pornography
 
In 2007 the Home Office asked the IWF to allow our public internet reporting mechanism to be used for the reporting of UK-hosted extreme pornography covered by Section 63 of the Criminal Justice and Immigration Act 2008. Following consultation with IWF’s industry members, our Board informed the government of our agreement to fulfil this role, from 26 January 2009, as part of our original remit.
 
In January 2015 the Government legislated to amend the existing extreme pornography offence at section 63 of the Criminal Justice and Immigration Act 2008 to criminalise the possession of extreme pornographic images that depict rape and other non-consensual sexual penetration.

The offence, which was designed to stop the proliferation of extreme material, applies equally online and offline, and to moving and still images, however produced. The offence is deliberately targeted at material at the extreme end of the scale.  The reform will bring the extreme pornography offence in England and Wales more closely in line with the equivalent offence in Scotland: https://www.iwf.org.uk/hotline/the-laws/criminally-obscene-adult-content/criminal-justice-and-licensing-scotland-act-2010. Possession of such material is subject to a three year maximum prison sentence.

The amended act came into force on 13 April 2015.
For further reading please see Annexes D1, D2 and D3: Sections 37 of the Criminal Justice and Courts Act 2015 http://www.legislation.gov.uk/uksi/2015/778/schedule/1/made.

The legislation covered by Section 63 of the Act is based on the principle that it is an offence to possess extreme pornographic images or pornographic images that depict rape and other non-consensual sexual penetration.  Although IWF has no role in the investigation of possession offences by members of the public it is conceivable that IT professionals managing networks, abuse teams, and others charged with moderating online services could be inadvertently exposed to this type of content. Therefore, our industry members may wish to refer to IWF as a point of expertise for advice on whether content of which they have become aware is potentially illegal and whether it should be considered for investigation by the police.
 
Assuming any such content is considered to be unlawful we will ensure the IT professional reporting the content and their company are paired with the relevant law enforcement unit so any potential offences could be investigated. 
 
The new legislation is not intended to extend the law to cover the possession of material beyond that which is already illegal to publish under the Obscene Publications Act 1959 (OPA). Therefore, the IWF will continue to apply OPA legislation to such content in the course of providing our national ‘notice and take-down’ service. On those rare occasions where material believed to be unlawful is depicted on a website hosted in the UK the IWF works in partnership with internet service providers (ISPs), hosting companies, and the police to provide information to assist investigations into the distributers of the content and to help combat abuse of UK networks.
 
Blocking
 
Unlike indecent images of children on the internet, IWF does not have the remit to deal with criminally obscene adult content at a global level. Comprehensive data regarding such content will not be collated in order to facilitate its blocking.
 
The IWF URL list which is made available to companies in the online sector so they can implement blocking solutions only contains specific web pages depicting indecent images of children according to UK law (Protection of Children Act 1978).
 
Notes:
 
If you believe you have stumbled across extreme pornography on a website hosted in the UK then it can be reported through the Internet Watch Foundation’s online reporting form (www.iwf.org.uk).
 
Where potentially illegal extreme pornographic material is found in hard copy or on a computer it should be reported to the police in the same way as any other criminal offence.
 
If individuals have concerns about the legality of content they possess they should seek their own legal advice.
 
This legislation contains defences to cover those who may have contact with the material in the course of their legitimate work.
 
Further information
 
For the Criminal Justice and Immigration Act 2008 (Section 63), visit http://www.legislation.gov.uk/ukpga/2008/4/contents Opens in New Window
 
 
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