Karttunen v. Finland: Child Pornography and Freedom of Expression

Today’s guest post was written by Rónán Ó Fathaigh, one of our colleagues at the Human Rights Centre. More information on Rónán can be found on the website of the Center for Journalism Studies of Ghent University, here.

In a recent admissibility decision which has received scant attention, the European Court considered for the first time the vexed question of the criminalisation of child pornography and its compatibility with freedom of expression. The issue before the Court was whether the conviction of an artist for including child pornography in an art exhibition violated the right to freedom of expression under Article 10 of the European Convention.

The applicant in Karttunen v. Finland was an artist who had included hundred of photographs of minors engaged in sexual acts in an exhibition entitled the “Virgin-Whore Church”, which was displayed at a gallery in Helsinki. The applicant had downloaded the images freely from the Internet, and the purpose of the exhibition was to encourage discussion on the ease of access to child pornography and its wide-spread existence.

On the opening day of the exhibition Finnish police seized the pictures and the exhibition was closed down. The public prosecutor initiated proceedings against the applicant, and she was subsequently convicted of possession and distribution of sexually obscene pictures depicting minors. However, the domestic courts did not impose any sanction on the applicant, taking into account her intention to provoke a general discussion, and the minor and excusable nature of the crime. The domestic courts did order confiscation of the images.

The applicant made an application to the European Court claiming her conviction was a violation of the right to freedom of expression under Article 10 of the European Convention. The Court firstly considered that notwithstanding the lack of sanction against the applicant, the conviction alone represented an interference with her right to freedom of expression. The crucial question for the Court was whether the interference had been “necessary in a democratic society”.

In determining the necessity of the interference, the Court stated that artists exercising freedom of expression are subject to duties and responsibilities, although the Court will look at the artistic work in question and the context of its exhibition.

The Court accepted that the criminalisation of child pornography was based on the interests of protecting children from sexual abuse, their privacy rights, and also moral considerations. The Court noted that the Finnish courts had acknowledged the applicant’s good intentions by not imposing any sanctions. However, the Court noted that the possession and public display of child pornography was still subject to criminal liability.

The Court considered that the domestic courts had adequately balanced the applicant’s freedom of expression with the countervailing interests, and the conviction responded to a genuine social need. Thus, the Court concluded that the interference with freedom of expression was proportionate to the legitimate aim pursued.

Comment

Firstly, this was the first time the European Court had considered the issue of child pornography, and the most striking aspect of the decision was that the Court seemed to hold that the distribution and possession of child pornography was an exercise of freedom of expression, and proceeded on this basis to consider whether an interference with such expression was legitimate. This approach contrasts sharply with the categorical approach of the Supreme Court of the United States, which considers child pornography involving actual minors as unprotected speech outside the protection of the First Amendment (see Ferber v. New York).

Secondly, the Court may be criticised for not fully considering certain issues, in particular its failure to distinguish between the production, distribution and possession of child pornography. These are fundamental distinctions which many superior courts throughout the world have grappled with, as the rationales for criminalising the production and distribution of child pornography may not apply to the mere possession of such pornography (see Osborne v. Ohio and the judgment of the Supreme Court of Canada in R. v. Sharpe).

The failure to even recognise these distinctions may stem from the application being considered as an admissibility decision rather than as a Chamber judgment. Karttunen mirrors a recent trend in European Court jurisprudence of admissibility decisions reading similar to Chamber judgments, with fundamental issues being considered at admissibility stage. However, the drawback of such an approach is the lack of fully substantiated submissions from the applicant and government, which deprives the Court of important arguments when reaching its conclusions.

The foregoing point is borne out when one considers that the Court merely approved the rationales accepted by the Finnish courts for criminalising child pornography, with no independent analysis or reasoning of its own under Article 10 principles.

The reluctance of the Court to develop its own principles regarding child pornography has consequences for the related issue of virtual child pornography. The Council of Europe Convention on Cybercrime places an obligation on member states not only to criminalise child pornography, but also material that depicts a person appearing to be a minor, or realistic images representing a minor. Indeed many member states have gone further and criminalised cartoon child pornography, including manga and anime.

Such laws raise legitimate concerns in terms of criminalising legitimate artistic expression. In contrast, the Supreme Court of the United States has held that prohibiting depictions of child pornography violated the First Amendment (see Ashcroft v. Free Speech Coalition). Given such developments, it may soon arise that the European Court will be called upon to fully consider the issues raised surrounding child pornography and freedom of expression. It is unfortunate the judgment in Karttunen provides no guiding principles on such issues.

16 thoughts on “Karttunen v. Finland: Child Pornography and Freedom of Expression

    • I think you are mistaken. Child pornography is different from murder.The act of making the movies/pictures is an element of the crime. It constitutes the crime. Suzanne’s point is – rightly – also that it is a crime at every level and that we should not only focus on the person who abuses the child, but also on those who distribute and possess child pornography. That is in fact exactly what is done in the fight against sexual abuse of children, by investigating, prosecuting and convicting pedophiles who operate in networks to share videos and pictures.

      I also find your comment disturbing. If you imagine yourself witnessing someone sexually abusing a child, would you really consider you did nothing wrong – legally speaking – if you took pictures and then distributed them?

      • Dear Stijn,

        “The act of making the movies/pictures is an element of the crime.”

        Well, that begs the question, as that is what exactly is at stake here, which is the de lege ferenda question, not the de lege lata one.

        “Suzanne’s point is – rightly – also that it is a crime at every level and that we should not only focus on the person who abuses the child, but also on those who distribute and possess child pornography.”

        Ronan offers some points on the opposite side. And there are more of them.

        “That is in fact exactly what is done in the fight against sexual abuse of children, by investigating, prosecuting and convicting pedophiles who operate in networks to share videos and pictures.”

        Stijn, please spare me the details. I am a laywer. Let alone that the equation possesors of child pornography = pedophiles is plain wrong.

        “I also find your comment disturbing.”

        That makes two of us. Where exactly have I asserted that If I were witnessing someone sexually abusing a child, I would take pictures and then distribute them? Or that such an action would be legal? Please do cite me.

        And what makes it more disturbing is the personal tone of your remark. If this is the way you usually adress your commentators, I should abstain.

  1. Dear Αθανάσιος Αναγνωστόπουλος (I wanted to address you by name before, but do not know the Latin spelling of your name),

    I suggest we leave behind the somewhat unfortunate comparison to taking pictures of a murder in action. I imagine you chose that analogy in a quick reply to Suzanne, rather than after careful deliberation.

    On the core matter of your response: creation and distribution of child pornography is a crime under Finnish legislation (see § 13 of the judgment for the English translation of the applicable article of the Finnish Penal Code). See also CoE Convention on Cybercrime of 23 November 2001, article 9 (entry into force: 1 July 2004). Whether display should also be punishable by law if it takes place for artistic purposes is a different matter, I agree. One could raise an argument that an artist who displays child pornography as part of an exhibition should enjoy the protection of article 10 ECHR, if she is doing it to express her opinion in a debate of public interest. But the ECtHR did not find a violation in this case. However, that is not the point I wanted to make with my previous comment. I wish to clarify – although I thought it was pretty clear – that when I spoke of prosecution and conviction of those distributing and possessing child pornography, I meant the most common distributor and possessor of the material: a person with malignant intentions. I see no reason why that person should be able to successfully invoke his freedom of expression.

  2. Dear Stijn,

    the latin spelling of my name is Athanasios Anagnostopoulos, Athanasios being the first name. The cyrillic I think is something like Атханасиос Анагностопоулос. I still haven’t figured the armenian and georgian versions 🙂

    “I suggest we leave behind the somewhat unfortunate comparison to taking pictures of a murder in action. I imagine you chose that analogy in a quick reply to Suzanne, rather than after careful deliberation.”

    Actually no. Suzanne wrote

    “And I meant to add that since … it should be a crime at every level: … possession.”

    So, Suzanne formed a deontic proposition, that possession of child porn should be always illegal, no matter what, even if by “child” one stretches semantics and includes 17 year olds.

    Let us see…

    A kills B, while C takes photos. A is punishable, and rightly so. C is not. Murder is, mind you, a more severe crime than pornography depicting minors (some of whom are already in the legal age of consenting to sexual acts of every kind). Could C become punishable? Should he? I think Suzanne is obliged to say yes. And that is a lot to stomach.

    The way I see it, we are facing a clear inconsistency: when the crime is more dreadful, possession of material depicting it is no big deal. When it comes to pornography, all of sudden we’re supposed to be fighting against the evil itself.

    Something’s gone wrong here. Something that demands a more careful deliberation from your part, I might add. And I find that Ronan considers it this way too:

    ‘the rationales for criminalising the production and distribution of child pornography may not apply to the mere possession of such pornography”

    “On the core matter of your response”

    No, that was not the core matter of my response, at least as I meant it and not as you did.

    I already asked you to spare me the details, I read the decision and you’re just copying it.

    “a person with malignant intentions.”

    Malignant intentions? That is not a very solid term, if we want to distinguish liberty from ten years in prison.

    Anyway, just one more point, since you deal with the ECHR:

    How about passive freedom of information? Meaning that the possessor, the possessor who is neither producer nor distributor, is a person who just receives information. So, I ask the following question:

    Can you give an example where a person passively receiving information is perpetrating a crime?

    I challenge you. 😉

    • The artist in this case did not “passively receive information”. She received it, copied it and displayed it for others to view. Making her a distributor of child pornography. Granted, I did not see her “artwork” but I assumed that when it was described as “child” pornography that the participants were recognizable as children and not teenagers who could pass as adults.
      Also, it should depend on how you come to “passively receive” and view the sexual abuse of innocent children. Did you pay for it? Are you financing it? Probably. Somebody is making money from it you can be sure.
      Its hard to legislate common sense.

  3. When I said that it should depend on how you come to “passively receive” and view the sexual abuse of innocent children, I did not mean to suggest that there is ever, in my estimation, a valid and acceptable way to do so. I meant that by viewing it you are supporting the producers and distributors because obviously (and I know Athanasios does not like my use of this word) no one would produce or distribute it if there was no one to receive it. Obviously! 🙂

  4. Dear Suzanne,

    although I do not focus entirely on the details of the present case, since I am interested in the broader picture of such laws, my principle still aplies in part:

    “The pictures had been downloaded from free Internet pages” says the decision and it’s true. Try a search on e-mule. So, no financing, no transaction whatsoever, no profit, no nothing. No common sense either.

    Let’s think of another example, more clear-cut. Say I have a 17 year old daughter, who, of course, is very beautiful. She has a boyfriend and they do what 17 year olds do. Among them, taking dirty pictures of each other with their cell phones. Should I call the police and have them both arrested? After all, a child is, by the cumbersome definition of the CoE, also a 17 year old, ie a person that, correct me if I’m wrong, can vote in Austrian general elevtions! And how does consent fit in this picture? If at all? And if not, why? [You will not find answers to these questions in the CoE bureaucracy papers though. Obviously! :-)].

    So, they have perpetrated the grave crime of producing and possessing child porn. Let’s spread some moral panic, shall we?

    • Dear Athanasios,

      I feel like your issue is more with the age of consent -what constitutes a “child”, than with child pornography. Again it is very hard to legislate common sense or morality. “Obviously” there are individuals who are 16, 17, 18 years old having sex; and taking pictures. The age of sexual consent is admittedly arbitrary. Here in the United States you can not legally drink until you are 21. Who picked that age?
      I am only concerned with young children who are being raped,abused and exploited by those adult individuals who these children should be able to look to for protection.

      In this case the artist did distribute child pornography in my view. And, sure you can look at these sites for free – for a little while. My experience with these types of sites is that eventually you pay. They are just teasers. I am definitely not about spreading moral panic! I just don’t like pedophiles. Sorry. 🙂

  5. Athanasios: And by “drink” I mean drink alcoholic beverages. Obviously we can drink before we are 21 🙂 Since you are a lawyer, I thought I should clear that up before you seized upon it.

  6. Dear Athanasios,

    as I experience it, we (Suzanne, you and I) are partly talking in parallel, which is leading us to go around in circles. I’m afraid it’s not getting us very far. Please allow me one final response, before I end this discussion from my part. Not because I do not find it interesting, but because it is consuming too much of my time and energy, while it has already become clear you will not be convinced by counter-arguments. Obviously (pretty popular word!), you should feel free to continue the debate with anyone interested.

    It appears that, as Suzanne already mentioned, you are at least partly concerned with the consequences of strict application of criminal legislation on child pornography in borderline cases. As jurists, we both know that legislation needs a level of generality to be able to function as such. We also both know that there remains room for interpretation in its application. The prosecutor’s offices and the courts may decide that certain acts that are strictly speaking transgressions of the law, do not require, nor merit prosecution and conviction of the perpetrator. I think the example you give of the two 17 year old minors exchanging pictures is a good one. But let us talk about the non-borderline cases, shall we? Perhaps we can at least conclude by finding common ground on those.

    Please let me start from your question on examples where a person passively receiving information is perpetrating a crime. I would say you are phrasing the question incorrectly. People who possess child pornography do not generally passively receive it. They search for it and acquire it. So the question should concern other examples where a person is perpetrating a crime by acquiring information and then keeping it in his possession. I think the most logical analogy would be illegally downloaded materials (for example copyright protected movies). Which is punishable by law, even if prosecution of the user does not generally take place. If you need another example: using insider knowledge (which may have been passively received) to trade in stocks. This may appear to be an incomplete analogy, but it is so only if we pretend the possessor of child pornography makes no use of the material after he gathers it and just has it sit there on his computer. That is not the case (more on that below). Another example: use of hard drugs. Actively acquired or passively received (“from a friend”): possession thereof is punishable by law. The question we need to ask is not “are there other examples?”, but “what would justify punishing those in possession of child pornography?” And “can they invoke their freedom of information?”

    This might be a good place to go into the difference between creating, distributing and possessing child pornography. The reason why all those acts are a crime in many countries is that they all contribute to sustaining a certain type of criminal behaviour: sexual abuse of minors. The aim is thus to prevent harm to minors. While the harm in the case of illegal downloading is one against property, the harm in child pornography is physical harm. Which is, in my opinion, worse. Now, you may rebut: but what of 17 year old consenting minors? But I would rather like to know what you think about a video of a ten year old being raped. Should the possessor of such material be criminally responsible? I say yes. You haven’t given your opinion on such a case yet. You may disagree. Or may reply that the primary focus should be on investigating, prosecuting and convicting the person who actually perpetrated the crime of rape. And I would agree with the latter response. But there remains ample reason to also prosecute and convict the possessor, because he is part of the whole. He sustains the sexual abuse by being its end-receiver. Much like the illegal downloader sustains the operations of those distributing copyright-protected material without authorisation. And there need not be a profit involved. Moreover, as I said before, I consider the harm in the case of sexual abuse to be much greater than the harm done by illegal sharing of copright protected material.

    You say that murder is worse than child pornography and that because taking pictures of a murder is not illegal, it is strange to make possession of pictures of a lesser crime punishable by law. I remain convinced that the primary reason why your argument fails is that it presents an incorrect analogy. Those taking pictures of murders cannot sensibly be said to thereby create an interest in people murdering more people, so that others may ‘enjoy’ viewing the pictures. Yet, child pornography functions exactly that way: the pictures are taken and distributed so that people can ‘enjoy’ them. And people ‘enjoying’ them is what leads others to make more pictures and share them. You may disagree on the borderline cases, but I would be interested to know whether or not you agree that in cases of sexual abuse (rape of a twelve year old, for example) there is good reason to prevent such harm by punishing all those involved, including the end-‘user’. In my view, there is. And the cases of the US Supreme Court Ronan refers to offer sufficient rationales in support of denying free speech protection to those involved in the creation and sustenance of child pornography, including its possessors.

    I would like to thank you and Suzanne for a vivid discussion on this topic and hope you will both excuse me for withdrawing from it after this, my final word on the matter under this post.

  7. Dear Suzanne,

    “Who picked that age?”

    Someone incoherent enough to think that 18 year olds are mature enough to vote, but not to drink. Obviously! :-Ρ

    “My experience with these types of sites is that eventually you pay. ”

    Well, not true, but then again I’m surprised with the fields you’re experienced in! 😉

    See you around!

    Dear Stijn,

    thanks for the elaborated response. I will conclude my participation as well, since there is no point in commenting if you don’t have the time or the energy to think it over. We’ve made ourselves more or less clear. It’s for the (informed and not emotionally overwhelmed) reader to decide.

    Talk to you some other time!

  8. […] Πήρε το ανύστακτο μάτι μου την απόφαση Karttunen κατά Φινλανδίας (10 Μαΐου 2011) του Ευρωπαϊκού Δικαστηρίου του Στρασβούργου, που παρατίθεται και εδώ και σχολιάζεται αρνητικά και εδώ. […]

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