Criminal Justice and Licensing (Scotland) Act 2010: Section 42: Extreme Pornography

Section 42 of the Criminal Justice and Licensing (Scotland) Act 2010 Opens in New Window provides for a new offence criminalising the possession of extreme pornographic material. It came into force on 28 March 2011. An information note Opens in New Window on the new offence, including Frequently Asked Questions Opens in New Window is available.

The new offence is similar to that at section 63 of the Criminal Justice and Immigration Act 2008, which applies in England, Wales and Northern Ireland. The Scottish offence goes further than that offence, however, in that it covers all images of rape or other  non-consensual penetrative sexual activity.

The new legislation is based on the principle that it is an offence to possess extreme pornographic images. Although the 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 the IWF as a point of expertise for advice on whether content of which they have become aware is potentially criminal 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. 

Under section 51 of the Civic Government (Scotland) Act 1982, it is already illegal to publish, sell or distribute or to possess with a view to selling or distributing, obscene material, including the obscene pornographic material which is covered by this new offence. The Bill contains provisions to increase the maximum penalty under section 51 of the 1982 Act in respect of extreme pornographic material from three to five years.

The IWF will continue to apply existing 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.

To report criminally obscene adult content hosted in the UK, including extreme pornography click here.

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