Bills Committee on Prevention of Child Pornography Bill

 

The Legislative Council's Bills Committee Meeting on 17th May,
2002



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THE BAR ASSOCIATION'S SUBMISSION

ON THE PREVENTION OF CHILD

PORNOGRAPHY BILL


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1. The Bar Association notes that child pornography is
defined in extremely wide terms in clause 2(1) of the Bill

"(a) a photography, film, computer-generated image
or other visual depiction that is a pornographic depiction of a person
who is or appears to be a child, whether it is made or generated by electronic
or any other means, whether or not it is a depiction of a real person
and whether or not it has been modified; or"

2. The proscribed conduct encompasses the depiction of
a person who, although in fact an adult, appears to be a child and electronic
images even if it is not of a real person ("virtual child pornography").

3. In the United States of America the Child Pornography
Prevention Act 1996 expanded the Federal prohibition on child pornography
to include not only pornographic images using actual children but also
any visual depiction, including a computer - generated one that is, or
appears to be, of a minor engaging in sexual explicit conduct. In Ashcroft,
Attorney General et al v Free Speech Coalition et al, a decision of the
Supreme Court decided on 16th April 2002, the Court considered the provisions
of 18 U.S.C. 2256(8)[B] in the context of the First Amendment to the Constitution
and determined it was overbroad and unconstitutional. Section 2256(8)
provides,

""child pornography" means any visual
depiction, including any photograph, film, video, picture, or computer
or computer-generated image or picture, whether made or produced by electronic,
mechanical, or other means, of sexually explicit conduct, where - (B)
such visual depiction is, or appears to be, of a minor engaging in sexually
explicit conduct;"

4. It is to be noted that the United States legislation
also contained affirmative defences [see section 2252A(c)] but the Supreme
Court nevertheless concluded that the provision abridged the freedom to
engage in a substantial amount of free speech and was unconstitutional.

5. Notwithstanding the reference in Security Bureau's
Legislative Council Brief dated 8 January 2002 at paragraph 31 that the
Department of Justice has advised that the Bill is consistent with the
Human Rights provisions of the Basic Law it may be that further thought
might be given to that conclusion in light of the matters set out above.

6. It is to be noted that the definition of pornographic
depiction in Clause 2 of the Bill is wider than equivalent legislation
in both Canada and the United States of America in that it includes the
depiction of the breast of a female.



Hong Kong Bar Association

Dated 13th May 2002