Is the Prohibition on Virtual Child Pornography an Unjustifiable Limitation of the Constitutional Right to Freedom of Expression?

by Mark Oppenheimer
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The Films and Publications Act prohibits two types of child pornography. The first type Real Child Pornography, involves actual children. This is the type of pornography that evokes a strong and near universal sense of moral outrage. It is not only that the material is offensive; it is the permanent record of a particularly vile form of child abuse. Children that are involved in pornography are harmed via its creation; the distribution of the material is a further harm against their dignity and privacy. During the course of this paper I will discuss why the state is justified in instituting criminal sanctions for the production, distribution and possession of this type of child pornography.

The legislation also takes aim at another form of child pornography. This type does not involve real children. This Virtual Child Pornography is made up of a number of different types of erotic material. It includes paintings, cartoons, sketches and written descriptions of children involved in sexual conduct. It also includes depictions of adults, which are represented as being under the age of 18, engaged in sexual conduct. Digitally created images that resemble actual child pornography, but which do not make use of real children are also prohibited.

In this paper I highlight the key difference between Real and Virtual Child Pornography. After showing why the state is justified in prohibiting Real Child Pornography I will argue that those reasons do not provide a basis for the state to institute criminal sanctions against those that produce, distribute and possess Virtual Child Pornography. I will explain why the current prohibition on Virtual Child Pornography infringes the right to freedom of expression and argue that the infringement cannot be justified by the limitations clause in the South African Constitution.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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