Legal Aspects of Online Criminal Speech and Sexual Images of Children

This essay examines the legal aspects relating to online criminal speech and sexual images of children while referencing them with liberal and paternalistic regulatory models.

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Cybercrime

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In today’s digital era, the use of technology has become a key part of people’s lives which
has both positive and negative consequences. Due to the popularity of smartphones and
social media sites, it has become easier for people to communicate with others and they can
openly express themselves in front of a large audience which has opened new business and
communication opportunities.1 Freedom of expression is one of the fundamental principles of
modern democracies which recognise the rights of people to express themselves on the
internet. However, since the internet has provided an open platform, people are able to
freely express their adverse views against particular individuals or a class of people that
promotes hate speech, and it negatively affects the interest of parties.2 Along with hate
speech, many criminals use the internet to share and collect sexual images of children which
has raises the concerns relating to the safety of children, child trafficking and child
pornography. Advocates of child protection and freedom of expression share a deep-seated
belief regarding the importance of protecting basic human rights.3 However, as the number
of explicit images of children increases on the internet, the importance of adaptation of a
strict regulatory framework is highlighted. The implementation of these policies is divided
between two regulatory models which include liberal and paternalistic. The objective of this
essay is to examine the legal aspects relating to online criminal speech and sexual images
of children while referencing them with liberal and paternalistic regulatory models. This
essay will evaluate whether the current legal aspects are appropriate to address these
issues and which is a more effective regulatory model when it comes to tackling these
issues.
Ling provided that the pressure on governments is increasing to introduce policies in the
organisation that are designed in order to change the behaviour of individuals on online
platforms.4 The demand for the implementation of policies to restrict the choice of individual
1 Shawn M Powers and Michael Jablonski, The real cyber war: The political economy of internet
freedom (University of Illinois Press 2015).
2 James Banks, ‘Regulating hate speech online’ (2010) 24 (3) International Review of Law, Computers
& Technology 233-239.
3 Barney Warf, ‘Geographies of global Internet censorship’ (2011) 76 (1) Geo Journal 1-23.
4 Yutian Ling, ‘Upholding free speech and privacy online: A legal-based and market-based approach
for Internet companies in China’ (2010) 27 Santa Clara Computer & High Tech. LJ 175.

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citizens on the internet is increasing without their consent. Controversies surround
paternalist policies for governing the policies of the internet because they resulted in
infringing key principles that are established within liberal societies such as citizens are best
places to know their own interests and freedom of expression. VanDeVeer provided that the
issue with paternalist policies prevails; however, they are ubiquitous which suggests that the
main issue with them is not whether they are justifiable; instead, the conditions on which
paternalist policies are made can be considered as justifiable.5 On the other hand, a contrary
view is given by one of the leading liberal theorist, Ronald Dworkin, who builds a strong case
against the implementation of paternalism. The views given by Dworkin are deeply rooted in
his liberal ethical theory in which he emphasised on the requirements of ethical integrity.
Dworkin provided that liberalism is referred to a political and economic philosophy that
focuses on individual equality of opportunity, protection of individual rights (primarily to life,
property, and liberty) and autonomy which are available against both state and private
economic actors that include business entities.6
In the case of criminal speech and explicit images of children online, both of these models
provide opposing views. The liberal theory recognised that legal policies which are
implemented by the government that restricts their ability to freely express their views online
are considered as wrong. On the other hand, Conly provided that paternalism emphasis on
the growing issue of criminal speech and child pornography along with its negative
implications to justify the application of stricter laws that restrict specific behaviours of
individuals on the online platforms to protect the rights of others.7 In the case of the United
Kingdom, statutes are introduced by the government to address the issue of hate speech
and child pornography to impose censorship on the internet. Bleich provided that as per
these laws, expression of hatred by a person against another person’s colour, disability,
5 Donald VanDeVeer, Paternalistic intervention: The moral bounds on benevolence (Princeton
University Press 2014).
6 Ronald Dworkin, Sexual Orientation and Rights (Routledge 2017).
7 Sarah Conly, ‘Against autonomy: justifying coercive paternalism’ (2014) 40 (5) Journal of Medial
Ethics 349.

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caste, nationality, gender identify, sexual orientation, race or religion is forbidden.8 People
that use criminal language to threaten or abuse others through online platforms with an
intention to distress, harass or alarm individuals are forbidden as well. Parties that engage in
these practices can face penalties include fines, imprisonment or both. In order to regulate
criminal speech, the Public Order Act 19869 provides key provisions.
Part 3 of the company prohibits the expression of racial hatred against an individual or group
of people for reasons such as caste, colour, race, religion or nationality. As per section 18 of
this Act, people that threaten, abuse or insult others by displaying or writing offending
materials in order to promote racial hatred or encourage others to promote hatred can face a
maximum sentence of seven years imprisonment or fine or both.10 Another relevant law
implemented by the government in this regards is the Criminal Justice and Public Order Act
199411 that prohibits anyone from causing distress, abuse or alarm. Section 4A of this Act
provides that a person that intent to cause distress, harass or alarm another person by using
or engaging in threatening, abusing or insulting behaviour or by displaying abusive or
insulting representations is found guilty pursuant to this section. The person can be
imprisoned for a term not exceeding six months or a fine that cannot exceed level 5 on the
standard scale or both. The Criminal Justice and Immigration Act 200812 is also implemented
by the government to prohibit offences of inciting hatred on the ground of sexual orientation
or against immigrants. This act prohibits the use of any words, performance, play,
broadcasting, recording, publishing or display of written material that constitute as
threatening and not just insulting or abusive.
Similarly, the Racial and Religious Hatred Act 200613 also prohibits any use of words, written
materials or performance that threaten, insult or harass another person due to religious
8 Erik Bleich, ‘The rise of hate speech and hate crime laws in liberal democracies’ (2011) 37 (6)
Journal of Ethnic and Migration Studies 917-934.
9 Public Order Act 1986
10 Legislation, Public Order Act 1986 (2019) < https://www.legislation.gov.uk/ukpga/1986/64>.
11 Criminal Justice and Public Order Act 1994
12 Criminal Justice and Immigration Act 2008
13 Racial and Religious Hatred Act 2006

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differences. Although the government has implemented these laws to regulate the actions
relating to criminal or hate speech on the interest and in public; however, these laws are not
as effective when it comes to governing the parties that use social media sites to engage in
hate speech. The advancement of technology has made it relatively easier for individuals to
hide their identity and location when they write hate speech on the internet. A quick online
search can expose a person to a vast variety of hate speech which can have a negative
impact on their mental health. Lipschultz argued that these laws contradict with the right of
individuals to freely express their views online since they can come within the scope of hate
speech.14 Moreover, the demand for stricter laws that further increases the regulations on
the actions of individuals is increasing. Many argue that social media companies and other
online platforms should actively engage in these practices to ensure that they stop people
from engaging in criminal speech that promotes hatred against an individual or group of
individuals.
In the case of child pornography, the strictness of laws is necessary to make sure that
children are protected and child predators did not use the internet as a platform to share and
collect sexual images of children. The Protection of Children Act 197815 has made it illegal
for parties to take, distribute, show, process or make any pornography of individuals below
the age of 18. If these laws are breached, then the criminal can face a maximum penalty of
10 years in prison. In the case of digital media, people that save a copy of the explicit image
in their computer‘s hard drive, then it comes within the scope of “making” the image. This act
was further extended by the Criminal Justice and Public Order Act 1994. Moreover, the
Sexual Offences Act 200316 also recognises the rights of young person below the age of 18
and prohibits parties from violating these rights. The Coroners and Justice Act 200917 also
imposes a criminal penalty on those individuals that take, collect or distribute sexual images
that depicting subject under 18 years.
14 Jeremy Lipschultz, Free expression in the age of the Internet: Social and legal boundaries
(Routledge 2018).
15 Protection of Children Act 1978
16 Sexual Offences Act 2003
17 Coroners and Justice Act 2009

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The possession of these images has become a criminal offence as well; previously, it was
legal for parties to legally hold the copies of these images as long as they did not distribute
them. Akdeniz provided that these laws are implemented in order to regulate the actions of
individuals to prohibit them from engaging in criminal activities and protect the rights of the
individuals.18 Based on the principles of liberalism, these laws did not violate any
fundamental rights of individuals since they are engaging in illegal practices. However, the
issue arises when laws become stricter for all individuals on the internet to ensure that no
one is able to share, make or collect sexual images of children. On the other hand, Payne
provided that paternalism supports the strictness of these policies to make sure that parties
are not able to engage in these criminal activities.19 The demand for stricter laws to govern
the actions of individuals on the internet is increasing because current laws are not suitable
to prohibit parties from engaging in illegal practices that adversely affect the interest of
children.
There are many recent examples that show how liberalism approach is no longer suitable to
regulate the actions of individuals on the internet, and these incidents have also highlighted
the importance of stricter laws that are introduced while complying with principles of
paternalism. For example, the Christchurch mosque shootings were two terrorist attacks that
happened in New Zealand on 15th March 2019; the terrorist live-streamed the first terrorist
attack on Facebook Live; the video was seen by around 200 people that were later become
viral on the social media platform.20 This example shows the negative side of social media
websites and how criminals can use them to spread hatred against a group of individuals
based on their race, caste, religion or nationality. Moreover, the popularity of social media
sites has made it easier for criminals to make, share and collect sexual images of children
through the internet. As per a UK-based company called Internet Watch Foundation, around
18 Yaman Akdeniz, Internet child pornography and the law: national and international responses
(Routledge 2016).
19 Robert Payne, Moral panics over contemporary children and youth (Routledge 2016).
20 Mike Snider, No one reported New Zealand mosque shooting livestream as it happened, Facebook
says (2019) < https://www.usatoday.com/story/tech/news/2019/03/19/facebook-new-zealand-shooter-
livestream-not-reported-during-massacre/3209751002/ >.

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94 percent of the child pornography images that were detected in 2016 were posted by
criminals on free-to-use websites such as Flickr, Tumblr, and Imgur.21 Many leading social
media sites such as Instagram, Facebook, and Twitter also found this issue because
criminals used their platform to share child pornography. It shows that the popularity of social
media sites has increased the issue of criminal speech and child pornography which is not
stopping by the current legal framework.
The laws which are implemented by the government are not capable of keeping up with the
rapidly changing technologies which also makes it easier for individuals to engage in criminal
activities. Nunziato argued that since the number of individuals that uses online platforms is
considerably high, it becomes difficult for parties to detect small incidents or posts that
considered as hate speech.22 Moreover, it has become considerable easier for individuals to
hide their identity when they engage in these criminal practices which defeat the purpose of
expression of human rights. Many people argue that the internet is considered as a “hyper-
liberalism” because people use it as a platform to engage in criminal speech. Moreover,
normal people also use these platforms to express their ‘opinions’ against the actions of
individuals or a group of people which becomes a part of hate speech. Since there is no filter
on the internet, it is difficult to determine which posts are considered as hate speech and
which posts are mere publishing of opinions.23 The differentiation between these two
elements is considerably difficult which makes it challenging to legal authorities to impose
laws on people that ‘barely’ comes with the scope of the application of these laws.
Therefore, the application of paternalism is important to protect other fundamental rights of
individuals by ensuring that they are not harassed or abused by individuals on the internet.
The current data privacy protection did not provide adequate protection to the privacy of
individuals which raises the importance for greater privacy paternalism. The paternalistic
21 Terry Reith, Rise of social media leads to flood of child porn images (2017) <
https://www.cbc.ca/news/canada/edmonton/social-media-exploitation-1.4130160 >.
22 Dawn C Nunziato, ‘The beginning of the end of internet freedom’ (2013) 45 Geo J Int’l L 383.
23 Ben Wagner, ‘The politics of internet filtering: The United Kingdom and Germany in a comparative
perspective’ (2014) 34 (1) Politics 58-71.

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regulatory model can assist in ensuring that stricter policies are introduced by the
government to ensure that children are protected from predators. Rather than imposing
stricter laws on users, the government should implement policies that are targeted towards
companies to regulate their operations to ensure that they prohibit these users from
engaging in similar practices.24 It should be a collaborative effort to ensure that different
stakeholders involved in this process to achieve common justice. The companies that offer
their free online services to users should implement stricter policies to identify the people
that use their services to ensure that they did not engage in illegal practices. In case the
parties engage in illegal practices, then it would be easier for regulators to impose criminal
penalties on them since it will be easy to identify them.25 Although these policies might result
in creating challenges for individuals to openly express their ideas and visions; however, it
will address a bigger issue that is adversely affecting the interest of innocent people.
Until stricter laws are implemented by the government, this issue will continue to prevail, and
it will continue to adversely affect the interest of innocent people who become the victim of
hatred online. Without the paternalistic regulatory model, it is impossible to govern the
actions of online users which make it easier for them to engage in unethical practices. It is
important that the government introduce policies that are focused on addressing major
issues such as child pornography by imposing obligations on users.26 One example is the
identification of the identity of people that use these services to ensure that regulators are
able to impose penalties on them if they engage in illegal actions. These laws should make it
difficult for users to upload, download or share content that is illegal and they should not be
allowed to use the platform to promote hate speech.27 Therefore, the paternalistic regulatory
24 Raphael Cohen-Almagor, ‘Fighting hate and bigotry on the Internet’ (2011) 3 (3) Policy & Internet 1-
26.
25 Ian Cram, Contested words: legal restrictions on freedom of speech in liberal democracies
(Routledge 2016).
26 Broder Kleinschmidt, ‘An International Comparison of ISP's Liabilities for Unlawful Third Party
Content’ (2010) 18 (4) International Journal of Law and Information Technology 332-355.
27 Emily B Laidlaw, ‘The responsibilities of free speech regulators: an analysis of the Internet Watch
Foundation’ (2012) 20 (4) International Journal of Law and Information Technology 312-345.

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model will assist in addressing the issue of criminal speech and sexual images of children to
protect innocent people’s interest and creates a peaceful society.
Based on the above observations, it can be concluded that the legal framework implemented
by the government to prohibit hate speech and sexual implement has been effective.
Different laws are implemented by the government to prohibits and hold the parties liable for
their actions if they engage in practices that promote hate speech such as Public Order Act,
Criminal Justice, and Public Order Act, Criminal Justice and Immigration Act and Racial and
Religious Hatred Act. Provisions for prohibiting child pornography and sexual images of
children also made illegal by different laws such as Protection of Children Act, Sexual
Offences Act and Criminal Justice and Public Order Act. These policies have become a part
of the legal system without hindering the fundamental rights of individuals such as freedom
of expression. However, these legal policies have been unsuccessful when it comes to
ensuring that the rights of individuals are not breached on the internet. Different examples
are evaluated in this essay that highlighted the negative implications of social media sites
and how the online platform has made it easier for individuals to engage in illegal activities
such as criminal speech and child pornography while hiding their identity. Therefore, the
liberalism regulatory model has been ineffective when it comes to addressing the issue of
prohibiting hate speech and child pornography on the internet. In order to address this issue,
the adaptation of the paternalistic regulatory approach can assist in resolving the issue this
issue by ensuring that parties are strictly regulated on the internet and they remain under
continuous supervisions. The current data privacy protection framework is not suitable since
obligation is not imposed on the companies that offer these services to users across the
globe. In order to address this issue, it is important that greater privacy paternalism policies
are implemented in the cyber laws to implement provisions that restrict the usage of the
internet in certain ways to eliminate the issue of hate speech and child pornography on the
internet. This will also promote peace in society by imposing obligations on parties which is
crucial to ensure that future generations did not face similar issues.

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Bibliography
Books
Akdeniz Y, Internet child pornography and the law: national and international responses
(Routledge 2016).
Cram I, Contested words: legal restrictions on freedom of speech in liberal democracies
(Routledge 2016).
Dworkin R, Sexual Orientation and Rights (Routledge 2017).
Lipschultz J, Free expression in the age of the Internet: Social and legal boundaries
(Routledge 2018).
Payne R, Moral panics over contemporary children and youth (Routledge 2016).
Powers SM and Jablonski M, The real cyber war: The political economy of internet freedom
(University of Illinois Press 2015).
VanDeVeer D, Paternalistic intervention: The moral bounds on benevolence (Princeton
University Press 2014).
Articles
Banks J, ‘Regulating hate speech online’ (2010) 24 (3) International Review of Law,
Computers & Technology 233-239.
Bleich E, ‘The rise of hate speech and hate crime laws in liberal democracies’ (2011) 37 (6)
Journal of Ethnic and Migration Studies 917-934.
Cohen-Almagor R, ‘Fighting hate and bigotry on the Internet’ (2011) 3 (3) Policy & Internet 1-
26.

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Conly S, ‘Against autonomy: justifying coercive paternalism’ (2014) 40 (5) Journal of Medial
Ethics 349.
Kleinschmidt B, ‘An International Comparison of ISP's Liabilities for Unlawful Third Party
Content’ (2010) 18 (4) International Journal of Law and Information Technology 332-355.
Laidlaw EB, ‘The responsibilities of free speech regulators: an analysis of the Internet Watch
Foundation’ (2012) 20 (4) International Journal of Law and Information Technology 312-345.
Ling Y, ‘Upholding free speech and privacy online: A legal-based and market-based
approach for Internet companies in China’ (2010) 27 Santa Clara Computer & High Tech. LJ
175.
Nunziato DC, ‘The beginning of the end of internet freedom’ (2013) 45 Geo J Int’l L 383.
Wagner B, ‘The politics of internet filtering: The United Kingdom and Germany in a
comparative perspective’ (2014) 34 (1) Politics 58-71.
Warf B, ‘Geographies of global Internet censorship’ (2011) 76 (1) Geo Journal 1-23.
Legislation
Coroners and Justice Act 2009
Criminal Justice and Immigration Act 2008
Criminal Justice and Public Order Act 1994
Protection of Children Act 1978
Public Order Act 1986
Racial and Religious Hatred Act 2006
Sexual Offences Act 2003

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Websites
Legislation, Public Order Act 1986 (2019) < https://www.legislation.gov.uk/ukpga/1986/64>.
Reith T, Rise of social media leads to flood of child porn images (2017) <
https://www.cbc.ca/news/canada/edmonton/social-media-exploitation-1.4130160 >.
Snider M, No one reported New Zealand mosque shooting livestream as it happened,
Facebook says (2019) < https://www.usatoday.com/story/tech/news/2019/03/19/facebook-
new-zealand-shooter-livestream-not-reported-during-massacre/3209751002/ >.