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 self-
regulatory 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:

1
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 well-
intentioned 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

2
 “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 Internet-
related 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

3
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:

10
See footnote 7
11
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

4
“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
14
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”.

5
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)

6
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;

21
The Crown vs John Robin Sharpe, 1998
22
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

7
 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

25
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

8
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
30
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

9
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 computer-
related 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?

35
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

10
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

11
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.

38
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

12
 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

44
Emphasis added
45
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

13
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.

47
See http://www.wto.org/english/tratop_e/trips_e/trips_e.htm
48
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

14
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.

55
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

15
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