Legal status of fictional pornography depicting minors

All sexualized depictions of people under the age of 18 are illegal in Australia, and there is a "zero-tolerance" policy in place.[5]

In December 2008, a man from Sydney was convicted of possessing child pornography after sexually explicit pictures of child characters from The Simpsons were found on his computer. The NSW Supreme Court upheld a Local Court decision that the animated Simpsons characters "depicted", and thus "could be considered", real people.[6] Controversy arose over the perceived ban on small-breasted women in pornography after a South Australian court established that if a consenting adult in pornography were "reasonably" deemed to look under the age of consent, then they could be considered depictions of child pornography. Criteria described stated "small breasts" as one of few examples, leading to the outrage. Again, the classification law is not federal or nationwide and only applies to South Australia.[7]

Real child porn is illegal, considered to be any records of "any situation that involves a child or adolescent in explicit, real or simulated sexual activities, or the display of the genital organs of a child or adolescent for primarily sexual purposes." The adjectives "real" and "simulated" (used in the plural by the rule in art. 241-E of the code of minors)[8] refer to the explicit sexual activities represented, and not to the child or adolescent (if real or fictional product). In other words, what the law sanctions is the participation, real or simulated (through, for example, the use of photomontage technique), of a real child or adolescent in a scene with explicit sexual content. However, drawings and other unrealistic graphic representations of fictional children no matter how offensive including pornography of the subgenre of Japanese manga/hentai lolicon and shotacon are legal and not a criminal offense.[9][10]

In Belgium, only pornographic art that realistically depicts underage characters is illegal.[11]

Canadian laws addressing child pornography are set out in Part V of the Canadian Criminal Code, dealing with Sexual Offences, Public Morals and Disorderly Conduct: Offences Tending to Corrupt Morals. Section 163.1 of the Code, enacted in 1993, defines child pornography to include "a visual representation, whether or not it was made by electronic or mechanical means", that "shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity", or "the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years".[12] The definitive Supreme Court of Canada decision, R. v. Sharpe, interprets the statute to include purely fictional material even when no real children were involved in its production.

Producing and distributing pornography which realistically or factually depicts a child—basically photographic images—is illegal in Finland and punishable by a fine or up to two years' imprisonment. Possession of such pornography is punishable by a fine or imprisonment for up to one year.

Realistic and factual visual depiction of a child appearing in sexual acts is defined as it having "been produced in a situation in which a child has actually been the object of sexually offensive conduct and realistic, if it resembles in a misleading manner a picture or a visual recording produced through photography or in another corresponding manner of a situation in which a child is the object of sexually offensive conduct".[19]

Purely fantasy-based virtual child pornography—in this case, drawings and paintings—remains legal by Finnish law because it has no connection to a real abuse situation; also, such depictions may serve informational or artistic purposes which can make even reality-based images legal.[20]

Since a reform of the French penal code, introduced in 2013, producing or distributing drawings that represent a minor aged less than 15 years old is considered the same as producing real child pornography and is punishable by up to five years' imprisonment and a €75,000 fine, even if the drawings are not meant to be distributed.[21][22]

In principle, the regulations in Chapter 13 of the German Criminal Law for offenses against sexual self-determination also prevent the public advocation and the degradation of minors as sexual objects. The distribution of child pornography, defined as pornography relating to "sexual acts performed by, on or in the presence of a person under 14 years of age (child), the reproduction of a child in a state of full or partial undress in an unnaturally sexual pose, or the sexually provocative reproduction of a child’s bare genitalia or bare buttocks," is criminalized with a penalty of imprisonment.[23] However, with regards to possession, only material depicting actual or realistic acts is criminalized.[23] For reproductions of persons over 14 but under 18 years (youth pornography), the penalty for distribution is imprisonment or a fine.[24]

Nevertheless, due to the guaranteed freedom of art,[25] fictional works were officially deemed legal or can be checked by a legal opinion. According to German legal information websites, acquisition and possession of fictional pornography depicting minors where it is immediately apparent that the content is purely of fictional nature, such as cartoons and comics or anime and manga, are not prosecuted against unless it is not readily distinguishable whether the depiction is computer generated or real.[26][27][28] The Federal Government also made it clear that the criminal offense "should remain limited" to cases "in which an actual event is reproduced through video film, film or photo". On the other hand, it did not regard the sanction of the regulation as fulfilled in the case of "child pornographic novels, drawings and cartoons", because their possession did not contribute to children being abused as "actors" in pornographic recordings. [29]

Virtual child pornography is punished with up to a third of the sanctions for real-life child pornography. Virtual images include images, or parts of images, produced and modified with software from actual photos of minors, where the quality makes it so that fake situations are manipulated to appear realistic.[30]

In Japan, pornographic art depicting underage characters (lolicon, shotacon) is legal but remains controversial even within the country. They are commonly found in manga, erotic computer games, and doujinshi.

On October 1, 2002, the Netherlands introduced legislation (Bulletin of Acts and Decrees 470) which deemed "virtual child pornography" illegal.[31] The laws appear to only outlaw "Three-dimensional, realistic images representing a minor engaged in a sexually explicit conduct". In January 2011 the law was expanded and non-realistic 3D images are now counted as child pornography.

In a 2010 case, after viewing the images in question, which were created on a computer, the court opined that the virtual child pornography images did not fall under criminal law. "All images can be termed as pornographic (three dimensional) cartoons, animations, or drawings. The court concludes that it is immediately obvious to the average viewer that the event is not real and that the images are manipulated images and not realistic."

As of September 1, 2018, the Dutch criminal law punishes "anyone who spreads, sells, openly exhibits, manufactures, imports, transports, exports, acquires, possesses, or accesses by means of an automated system or using a communication service an image (or data carrier containing an image) depicting sexual conduct, in which someone knowingly under the age of 18, is involved (or appears to be involved)" with a prison sentence of up to 4 years or a fine in the fifth category (up to €82,000).[32][33]

In New Zealand, the Films, Videos, and Publications Classification Act 1993 classifies a publication as "objectionable" if it "promotes or supports, or tends to promote or support, the exploitation of children, or young persons, or both, for sexual purposes". Making, distribution, import, or copying or possession of objectionable material for the purposes of distribution are offences punishable (in the case of an individual) by a fine of up to NZ$10,000 on strict liability, and ten years in prison if the offence is committed knowingly.[34]

In December 2004, the Office of Film and Literature Classification determined that Puni Puni Poemy—which depicts nude children in sexual situations, though not usually thought of as pornographic by fans—was objectionable under the Act and therefore illegal to publish in New Zealand. A subsequent appeal failed, and the series remains banned.[35]

In April 2013, Ronald Clark was jailed for possession of anime that depicts sex between elves, pixies, and other fantasy creatures.[36] It was ruled as obscene and he was jailed for three months following the trial.[37] Clark was previously convicted for indecently assaulting a teenage boy and his lawyer noted that ethical issues complicated the case.[37]

As of 2005, the Norwegian penal act criminalizes any depictions that "sexualize" children, even if it does not actually show sexual acts with children.[38] This could include any artificially produced material, including written text, drawn images, animation, manipulated images, an adult model with childish clothes, toys, or surroundings.[39]

The penal act has been applied to drawn images described as "hentai-images" in Agder Court of Appeal with the following remarks:

The drawings show children in various sexual positions and abuse situations. The Court of Appeal notes that such drawings are not as serious as films, or photographs of living people. This is because the drawings are not the product of actual abuse. The drawings nevertheless help to "normalize" and underpin the industry of child sexual abuse, and for that reason is also a serious offence.[40]

Another judgment on possession of 300 to 400 drawings downloaded from the internet described as Japanese lolicon hentai boi manga has the following remarks:

The Court of Appeal notes that there may be reason to look somewhat milder on drawings and other graphic sexualized representations of children, than on abusive material with living children as models / actors.

In the latter case, there is a real and serious assault behind each picture or film. It is nevertheless emphasized that possession of this material is a serious offence. It is assumed that the penalty is in the area of 90 to 120 days in prison.[41]

Since the 2008 amendment to the Polish Penal Code (Article 202 § 4b), the production, dissemination, presenting, storing, and possession of pornographic content depicting "made or remade" images of minors taking part in any sexual activity is punishable by monetary fine, restriction of personal liberty, or imprisonment up to two years.[42][43] A "minor", according to Polish law, is a person under 18 years old.[44] If the age of a depicted person is in question, a court may appoint anthropological experts to determine it.[45]

This law faced criticism from legal experts. Maciej Wrześniewski questioned the legitimacy of this article, arguing that "it is not possible to unquestionably confirm the age of a depicted person—since such a person does not in fact exist".[46] This opinion was shared by Maciej Szmit, who called the whole article "unfortunately worded".[47]

From 2008 to 2016, there were 12 people found guilty under Article 202 § 4b (as a primary crime).[48][49] It is unknown in how many cases, if any, the judgment concerned drawn pornography, as this law is also used for "remade" images, such as when photographs of children's faces are pasted onto sexually explicit images of adults' bodies.[50]

One of the cases where the discussed Article 202 § 4b of Polish Penal Code was used in court was the case of a painter Krzysztof Kuszej, whose art "with photographic accuracy depicted children and men's genitalia during intercourse". His pictures implied that the men were priests.[51] The artist argued in court, that his art is a social commentary on subject of Catholic Church sexual abuse cases, and his artistic measures were adequate for the problem. The court's ruling was "not guilty". The ruling was based on the experts' opinion, that the presenting of pedophilia was not an intent of the artist, and that his works were of critical nature. The court warned, however, that "an artist must be aware that artistic freedom is not an absolute principle".[52]

Paragraph 1 of Article 242.1 of the Criminal Code of the Russian Federation makes it illegal to create, acquire, store, and/or move across the Russian border (including through the internet) pornographic pictures of minors for the purpose of distribution.[53] This includes drawings/depictions of minors. Real imprisonments exist.[54]

With the promulgation of the Films and Publications Amendment Bill in September 2003, a broad range of simulated child pornography became illegal in South Africa. For the purposes of the act, any image or description of a person "real or simulated" who is depicted or described as being under the age of 18 years and engaged in sexual conduct, broadly defined, constitutes "child pornography".[55] Under the act, anyone is guilty of an offence punishable by up to ten years' imprisonment if he or she possesses, creates, produces, imports, exports, broadcasts, or in any way takes steps to procure or access child pornography.

Spain allows drawn pornography which does not resemble real children, including cartoons, manga or similar representations, as the law does not consider them to be properly 'realistic images'. The Attorney General's Office considers that only extremely realistic images should be pursued. "In order to avoid undue extensions of the concept of child pornography, the concept of 'realistic images' must be interpreted restrictively. According to the Dictionary of the Royal Spanish Academy 'realist' means that which 'tries to adjust to reality'. Therefore, 'realistic images' will be images close to the reality which they try to imitate.[56] However, too realistic image, even painting, is strictly prohibited due to the law of European Union, this can be understood as images can not be distinguished from children in reality by normal people. Therefore having realistic simulation materials that showing child porn, such as simulation pictures or videos, will be encountered penalty.

"Pornographic documents, sound or visual recordings, depictions or other items of a similar nature or pornographic performances" showing "non-genuine sexual acts with minors" are illegal according to art. 197 of the Swiss Criminal Code and liable to a custodial sentence not exceeding three years or to a monetary penalty.[57]

Purely fictional virtual child pornography—in this case, drawings and paintings—remains legal by Swiss law.[58]

Any images or videos that depict children in a pornographic context are to be considered child pornography in Sweden, even if they are drawings.[59] A "child" is defined as a “person” who is either under the age of 18 or who has not passed puberty.[60]

These laws have been recorded in the media being put into play in Uppsala: the district court punished a man with a monetary fine and probation for possession of manga-style images.[61][62] This was appealed and taken to the Court of Appeal.[63][64] In court, Judge Fredrik Wersäll stated that a "person" (as in the definition of a "child") is a human being. The man possessing the illustrations, as well as his lawyer, stated that a comic character is not a person (a comic character is a comic character and nothing else) and that a person does not have cat ears, giant eyes, or a tail and that a person has a nose. Some of the pictures featured illustrations of characters with these unusual body parts. The prosecutor and an expert on child pornography argued that these body parts had no effect and that the comic characters indeed were persons. As examples of what is not a person, the child pornography expert mentioned The Simpsons and Donald Duck.[65] The Court of Appeal upheld the former verdict, for 39 of the 51 pictures, and the monetary fine was reduced.[66][67][68] It was immediately further appealed to the Supreme Court.[69] While the Prosecutor General agreed with the verdict of the Court of Appeal, he still recommended that the Supreme Court hear the case, to clarify the issue,[70] and the Supreme Court decided to do so.[71] On June 15, 2012, the Supreme Court found him not guilty. They decided that the images were not realistic and could not be mistaken for real children, and that they therefore could not be counted as exceptions to the constitutional law of freedom of speech. One picture was still considered realistic enough to be defined as child pornography according to Swedish law. However, his possession of it was considered defensible through his occupation as a professional expert of Japanese culture, particularly manga.[72]

The Coroners and Justice Act of April 2009 (c. 2) created a new offence in England, Wales, and Northern Ireland of possession of a prohibited image of a child. This act makes cartoon pornography depicting minors illegal in England, Wales, and Northern Ireland. Since Scotland has its own legal system, the Coroners and Justice Act does not apply. This act did not replace the 1978 act, extended in 1994, since that covered "pseudo-photographs"—images that appear to be photographs. In 2008 it was further extended to cover tracings and other works derived from photographs or pseudo-photographs.[73] A prohibited cartoon image is one which involves a minor in situations which are pornographic and "grossly offensive, disgusting or otherwise of an obscene character".

Prior to this, although not explicitly in the statutes, the law was interpreted to apply to cartoon images, though only where the images are realistic and indistinguishable from photographs.[74] The new law, however, covered images whether or not they are realistic.

• Artistic freedom
• Censorship
• Freedom of speech
• Legality of child pornography
• Pornography laws by region

• Al-Alosi, Hadeel (2018). The Criminalisation of Fantasy Material: Law and Sexually Explicit Representations of Fictional Children. Routledge. ISBN 978-1-138-57281-2.