Now You See it, Now You Don't: Digital Images and the Meaning of 'Possession'

Criminal Law Forum, Vol. 19, No. 2, p. 205, 2008

Monash University Faculty of Law Legal Studies Research Paper No. 2009-20

2 Pages Posted: 5 Nov 2009 Last revised: 11 Apr 2015

Jonathan Clough

Monash University - Faculty of Law

Date Written: February 28, 2010

Abstract

The advent of digital technology has had a profound impact on the production and distribution of child pornography. The international trade in such material is a major focus of law enforcement agencies around the world. Central to these efforts is the offence of 'possession.’ However, concepts of possession in the criminal law evolved in the context of tangible items such as drugs, and their application to intangible data presents significant challenges. Drawing upon the laws of Australia, Canada, England and the United States, this article analyses the concept of criminal possession in a digital context. While courts and legislatures are adapting to these new challenges, in some cases it is argued that the offence of possession is being stretched too far. It is suggested that some of these difficulties may be avoided by utilising an offence of 'accessing’ child pornography.

Keywords: cybercrime, child pornography, possession, digital, accessing

JEL Classification: K1, K14, K3, K39, K4, K42, K49

Suggested Citation

Clough, Jonathan, Now You See it, Now You Don't: Digital Images and the Meaning of 'Possession' (February 28, 2010). Criminal Law Forum, Vol. 19, No. 2, p. 205, 2008; Monash University Faculty of Law Legal Studies Research Paper No. 2009-20. Available at SSRN: https://ssrn.com/abstract=1500102

Jonathan Clough (Contact Author)

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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