Consultation Paper on Proposed Legislation for the Prevention of Child Pornography

4. Statutory Defence Clause

13. The 1999 Bill sought to create offences to prohibit printing, making, producing, reproducing, importing, copying, distributing, publishing, advertising and possessing child pornography. Appropriately high penalty levels were proposed to provide sufficient deterrent effect. For the avoidance of doubt and to ensure that innocent people would not be inadvertently caught under the Bill, a statutory defence was available to the effect that -

"Where a person is charged with an offence under the Bill, there shall be a defence for him if it is established by evidence that he had a legitimate cause for doing the act."

14. Since the publication of the 1999 Bill, the defence clause had been criticised for being vague and inappropriate. We decided therefore to improve and clarify it. The revised proposal is that a statutory defence to the offences will be available to the defendant if the alleged child pornography is found to have artistic merit or is for a genuine educational, scientific or medical purpose or for a genuine family purpose or that the act otherwise served the public good and did not extend beyond what served the public good.

15. We are fully aware of the human rights concerns that the Bill may generate and that the proposed provisions may interfere with a person's right to freedom of expression, particularly because mere possession of child pornography is proposed to be made an offence. Nevertheless, we believe that by clearly and carefully defining what is included as "child pornography", in conjunction with the availability of the statutory defence, a right balance between offering adequate protection to children and refraining from unnecessary infringement of freedom of expression is struck.