Abstract
This chapter explores the laws that frame sexting with a particular focus on Australia and Europe. International concerns over the impact that new technologies have had on child pornography and child abuse have led to countries strengthening laws to protect children. The chapter analyses how such reforms have impacted on children who engage in sexting and whether children have been criminalised for sexting behaviours. It will be seen that there are differences in how countries approach sexting. This chapter concludes by assessing whether, and what form of, legal response to sexting is appropriate and necessary.
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Notes
- 1.
- 2.
For a discussion of what images may be thought to be, or not be, sexting and the interplay between sexuality, gender and self-representation, see Albury (2015).
- 3.
See Crofts et al. (2015) for a study of the practices and motivations of young people concerning in sexting in Australia.
- 4.
- 5.
There was already a limited defence available only for possession of child pornography. The recommended defences were based on existing defences in Tasmania whereby it is a defence to offences involving a child in the production of child exploitation material, producing, accessing or possessing (but not distributing) child exploitation material to prove that the material depicts sexual activity between the accused and a person under 18 that is not unlawful (Criminal Code (Tas), s130E(2)).
- 6.
The age of sexual consent is not harmonised in the Convention, but determined by each signatory at national level.
- 7.
The Directive defines ‘child pornography’ as “(i) any material that visually depicts a child engaged in real or simulated sexually explicit conduct; (ii) any depiction of the sexual organs of a child for primarily sexual purposes; (iii) any material that visually depicts any person appearing to be a child engaged in real or simulated sexually explicit conduct or any depiction of the sexual organs of any person appearing to be a child, for primarily sexual purposes; or realistic images of a child engaged in sexually explicit conduct or realistic images of the sexual organs of a child, for primarily sexual purposes”. A 2015 Survey on the transposition of the Directive found that there ‘are great disparities in the way Member States have implemented the term child pornography into their national laws’ (Missing Children Europe, ECPAT, & eNACSO, 2015).
- 8.
Article 8 (3): It shall be within the discretion of Member States to decide whether Article 5(2) and (6) apply to the production, acquisition or possession of material involving children who have reached the age of sexual consent where that material is produced and possessed with the consent of those children and only for the private use of the persons involved, in so far as the acts did not involve any abuse.
- 9.
Within the EU, the age of sexual consent varies from 14 to 18 years of age (European Commission, 2016).
- 10.
Unfortunately, implementation reports on the Lanzarote Convention do not address the transposition of article 20 (3). The Lanzarote Committee, however, has announced that the subject of their second monitoring round will explicitly address ‘The dangerous effects of the child’s interaction through information and communication technologies (ICT)’.
- 11.
However, France has opted only to apply article 8(3) to the production of child pornography.
- 12.
Section 33-35 of the Criminal Justice and Courts Act, http://www.legislation.gov.uk/ukpga/2015/2/section/33?view=extent&timeline=true
- 13.
Translation by the authors.
- 14.
Article 13 United Nations Convention on the Rights of the Child – UNCRC; and article 10 European Convention on Human Rights (ECHR).
- 15.
Article 16 UNCRC and article 8 ECHR.
- 16.
This has been acknowledged by the European Court of Human Rights (ECtHR), e.g. Dudgeon v. United Kingdom, 22 October 1981.
- 17.
More information on the Zipit app is available at https://www.childline.org.uk/info-advice/bullying-abuse-safety/online-mobile-safety/sexting/zipit-app/
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Crofts, T., Lievens, E. (2018). Sexting and the Law. In: Walrave, M., Van Ouytsel, J., Ponnet, K., Temple, J. (eds) Sexting. Palgrave Studies in Cyberpsychology. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-71882-8_8
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