How weak compliance polices of pornography websites are putting anyone under European Law paying for it at risk

Author: Carolina Christofoletti

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• Paid Access to CSAM

1. Under Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, knowingly access to “child pornography” (legal term) shall be criminalized. [Uniform legislation]
2. Initially, the offence is an intentional one. But if we are talking about paid access, things run on a different way.
3. Technically, there’s an inversion of who shall prove what. Ideally, the Prosecution Office shall prove all elements, and criminal defences exists if it’s not proved to be otherwise. This varies from country to country but, in the case of paid access to CSAM, EU Directive clear authorizes imputation based on this simple fact.
4. Consideration 18 of the Directive 93 says: The intentional nature of the offence may notably be deduced from the fact that it is recurrent or that the offence was committed via a service in return for payment.

• Legislators Intent

1. We could say that adjudication would only be allowed when one paid, specifically, for that content. The fact is though that law was created in a scenario where not only CSAM clubs, but also thumbnail pornography galleries already existed.

• How to extract Intention: From the “may” to the “must”

1. Error is a plausible defence, but only if the defendant had reasonable reasons to believe that reality was otherwise. If platforms compliance programme are adequate, this claim may be valued.
2. If platforms programmes are weak, inadequate and on “do whatever you want here” model, access is intentional as one knew or should have known the risk and accepted it.
3. Back to General Part of Criminal Law again, in this case, imputation become a “must”.

Think about it…