From OUT-LAW News, 29/06/2007:“A US court has said that the existence of child pornography images in the cache of a man's computer did not mean that that man had committed a crime under state law. A forensic computer analyst for the US Secret Service had testified in court that Edward Ray Barton's laptop computer had been used to view 106 images of child pornography on the internet. Barton was convicted on 106 counts of the sexual exploitation of children and jailed. Under appeal, though, three judges in the state of Georgia ruled that Barton did not break the law, which says that a person must have knowing possession of the images. Judge Miller said that that in order to convict, the state had to show that a defendant took some action to save or download images, or that the defendant knew that the computer automatically saved files.” This is very interesting, not least because I was discussing the legal aspects of pornography at work earlier with a colleague – don’t ask. I considered myself well positioned to participate in this discussion because I had a whole week of work dedicated to pornography on my computer law module back in December. Anyway, I have to say that this decision seems to be well grounded in logic which, for an American court, could be considered a pretty rare thing nowadays. If the computer user had no idea of the cache on his computer and was just viewing, not purposefully saving the images, clearly he falls outside of the ambit of ‘having knowing possession of the images’. It doesn’t, of course, detract from the seriousness of child pornography and associated issues, nor does it make the computer user any less sick. You could argue, though, that by simply viewing the images, the user was fuelling the demand of child porn, thereby exacerbating the problem. In that sense, is the computer user any less guilty of sexual exploitation of children just because he didn’t save the images to disk?
Just to clarify, the position is different in England and Wales. S160 of the Criminal Justice Act of 1988 makes it an offence to merely possess indecent photographs of children. Further, by virtue of the Protection of Children Act 1978 as amended by the Criminal Justice and Public Order Act 1994 it is an offence to view images of child pornography on the internet regardless of whether they are consciously saved or not. The cases of R v Bowden 1999 and R v Smith and R v Jayson  EWCA Crim 683, clearly confirmed that viewing child pornography on the internet constituted a criminal offence because voluntarily downloading an indecent image from the internet to a computer constituted an act of making a photograph or pseudo-photograph for the purposes of s1(1)(a) Protection of Children Act 1978. In other words, by voluntarily downloading such an image, the user had caused the image to exist on the computer and was so caught by the Act. Conversely, viewing an email attachment which contained child pornography does not constitute such an offence, providing the user did not know or believe it likely that the attachment would contain an indecent image. Perhaps this is one of the few instances of where England & Wales lead by example.