FAQ

The distribution of some forms of pornography (and therefore not child pornography in particular) is penalized by Art. 383 of the Penal Code. This Article, which penalises public indecency and immorality, concerns "songs, pamphlets or other written articles, whether printed or not, and figures or images contrary to morality."

This still does not very clearly determine the notion of pornography, although it appears straight away that the law is applicable to texts as well as to images or sounds, regardless of the medium carrying the material. In particular, it can be a question of illustrations, videos, CDs and, of course, the Internet.

Pornography as a whole is not prohibited in Belgium. Prohibition only concerns the more extreme forms considered to be scandalous by society, such as bondage, zoophilia or other paraphilias. The criterion that determines precisely what material is to be regarded as prohibited pornography is not defined by law, which means that judges must rule on a case by case basis. The criteria often used in this connection are that the material must shock "the morality of the ordinary citizen", so that it is "resented by the collective conscience of the moment". In other words, there is no unequivocal rule, which means that judges must base themselves on what the average citizen would consider to be unlawful pornography.

Since 1995, the Penal Code has also contained an Article 383bis which covers child pornography alone. The distinction between this and other pornography lies in the fact that the material must show positions or sexual acts of a pornographic nature, involving or presenting minors. An older provision limiting the scope of this Article to minors under 16 years of age was repealed in 2000.

It should be noted that the actual involvement of a minor is unimportant. Even if the images only suggest the presence of a minor it may still be a matter of child pornography, as is also the case with computer-generated drawings or illustrations.

In addition to the question of age, there is a second important difference as regards Article 383. It can only be a question of child pornography in the legal sense of the term in the case of "emblems, objects, films, photos, slides or other visual media". In other words, it is only a matter of visual media and therefore not texts or simple sound recordings. These two groups fall within the description of pornography in general.

As far as child pornography is concerned, the Internet is subject to common law. The main provisions in this respect are Articles 380ter and 383bis of the Penal Code.

Article 380ter firstly prohibits the advertising of services of a sexual nature when reference is made to services offered by minors or persons claiming to be minors. The advertising must therefore concern a service provided by minors. Advertising for a site of a child pornography nature does not seem to be concerned.

However, a second provision under Article 380ter makes it an offence to advertise services of a sexual nature when these services are provided via a means of telecommunication.

Consequently, this also concerns advertising for sites with a suggestion of child pornography.

Article 383bis concerns, firstly, the distribution of child pornography and, secondly, the possession of child pornography material. Both are criminal offences! We shall return shortly to the question of possession of child pornography.

Penalisation of ‘distribution' is in fact set out in even broader terms, punishing "whosoever exhibits, sells, rents, distributes or hands out emblems, objects, films, photos, slides or other visual media representing positions or sexual acts of a pornographic nature involving or presenting minors or, with a view to commerce or distribution, manufactures or possesses them, imports them or has them imported or hands them over to a transport or distribution agent." In short, almost everyone who is involved in the exploitation or distribution of child pornography.

In the case of the Internet, the ban on the sale and distribution of child pornography is particularly important. Anyone publishing illustrations of a child pornography nature on a Web site or a on a newsgroup or sending out e-mails on a large scale with a content of this type undeniably falls into this category.

The law penalises the distribution of child pornography with imprisonment for five to ten years and a fine of 2,500 to 50,000 Euros. The public prosecutor's office must first of all institute proceedings along these lines, either on the basis of a report or on its own initiative.

To make a report on distribution of child pornography, we would refer you to the Child Focus Web site or the contact point of the Federal Police.

In theory, the Penal Code does not contain any specific provision on the criminal liability of access providers and they must be judged according to the same standards as for individuals.

There has been a great deal of discussion on the responsibility of access providers, both in Belgium and abroad (sometimes involving trials), with varying results. The issue in this respect is as follows.

In their most elementary form, access providers can be regarded as persons offering services to people enabling them to link up on the Internet and exchange data. From the most limited point of view, their role is therefore solely one of a passive medium, in which there can be only a low level of control, or none at all, over the content sought by subscribers. In this hypothesis, it seems difficult to hold them criminally liable for this content.

We can find some rather more concrete regulations which make it easier to understand this question in the laws of 11 March 2003 on information society services. They contain a chapter on the responsibility of service providers acting as intermediaries. The responsibility of a service provider acting solely as a medium is nil in theory if certain conditions have been fulfilled. We examine these conditions in detail below.

In theory, therefore, an access provider is not responsible for the transmission of child pornography on his network provided that his role remains limited to that of a simple medium.

However, many providers have more control over some of the services provided. This concerns a wide range of possible applications, including access to newsgroups, the hosting of Web sites or the creation of newsgroups. From this point of view, the responsibility of access providers can be extensive. We look at this question below.

The difference from the services of access providers, as described above, lies in the fact that the operator of a Web server not only transmits data but also ensures their availability. This does not mean that he produces or controls the content, but that the information is kept on computer systems under his control.

It would be very difficult in practice for the operator of a Web server to check the legality of the content of each page of each site on his servers. In theory, therefore, the exoneration from responsibility allowed to access providers also benefits the operators of Web servers. It should also be noted in this respect that it is often a question of the same service providers. Many access providers place Web space at the disposal of their subscribers so that they can also operate as Web hosts for these pages.

Here too, exoneration from responsibility is subject to certain conditions. We examine these conditions in detail here. Broadly speaking, we can say that operators are exempt only when they were unaware of the presence of child pornography on their system and immediately took all possible measures to make the material inaccessible once they were informed of the problem.

Although this legislation dates back to 2003, these rules have been applied in practice in Belgium for a long while. In 1999, similar agreements were written into a cooperation agreement between the Belgian Courts and access providers organised by the Belgian ISPA (Internet Service Providers Association). Any illegal content can be reported directly by users to either the Federal Police or a contact point set up by the access provider himself. The latter can then transmit the necessary information and enable the Federal Police to start processing the file. For further information, we would refer you to the ISPA and Child Focus Web sites.

The same rule also applies to other information services on the Internet where the operator has direct control over the material: he is not criminally liable, unless he has been informed of the presence of child pornography material and has not taken the necessary measures to make the material inaccessible.

The most striking example in this respect is access to newsgroups. Almost all access providers offer their subscribers access to newsgroups, each dedicated to a relatively clearly defined theme. Given the phenomenal number of messages posted every day in these newsgroups, it is impossible to check each message individually. However, it is possible and even relatively simple to block access to an entire newsgroup for all subscribers. As some newsgroups can be easily identified as places for the exchange of child pornography material (e.g. because of a name like alt.binaries.pictures.pedophilia), access to these newsgroups can be expected to be blocked for all subscribers. Any access provider who does not shoulder this responsibility could be accused of facilitating the distribution of child pornography, which could lead to proceedings on the basis of Article 383bis.

Specific services set up by access providers which they have promised to control (such as Internet chat lines), must be monitored to prevent the intrusion of child pornography material. Otherwise, providers could be held criminally liable. Promises made by access providers to moderate the content to which they give access therefore entails a responsibility to filter the material properly.

The role of a telecom operator is limited to providing access to an infrastructure allowing data to be transmitted and enabling the infrastructure to be maintained. Operators are not, however, aware of the nature of the data and cannot, therefore, determine whether the content is of an illegal nature or not. Operators therefore play the role of simple media, as we have already explained above.

This seems to rule out criminal liability because deliberate distribution is punishable. It therefore presupposes that child pornography is being knowingly distributed, which will almost never be the case with a telecom operator.

Legal proceedings cannot therefore be instituted against an operator for distribution of child pornography as long he is not and cannot be aware of the nature of the data.

If they intentionally facilitate the exchange of child pornography material on the Internet, they could be involved in criminal proceedings as accomplices.

No. Possession of child pornography material can be punished only if one "knowingly" possesses the material. If this is not the case, the employer cannot be prosecuted.

On the other hand, if he is aware of the presence of child pornography material on the computer of one of his employees and fails to take the necessary measures (e.g. by declaring possession), he can be prosecuted. From this point of view, whether the employer is a natural person or legal person is of no importance.