'Just Looking': When Does Viewing Online Constitute Possession?

Posted: 11 Jun 2013 Last revised: 4 Jul 2014

See all articles by Jonathan Clough

Jonathan Clough

Monash University - Faculty of Law

Date Written: June 10, 2013


Digital technology has greatly facilitated the production and distribution of child pornography, and in many jurisdictions it is an offense to possess child pornography. However, concepts of possession, which evolved in the context of tangible items, may be difficult to apply to digital images. One such issue arises where a defendant views child pornography online, but does not take active steps to download it. If such conduct does not constitute possession, then it may be possible for a person to view child pornography with impunity. This article discusses the nature of possession in the criminal law, and its application to digital images. The specific issue of “viewing as possession” is introduced, followed by an analysis of authorities considering this issue. It is argued that although the act of viewing online does constitute possession, the difficulties associated with proving such cases necessitates the enactment of an offense of accessing child pornography.

Keywords: child pornography, possession, accessing, criminal law

JEL Classification: K14

Suggested Citation

Clough, Jonathan, 'Just Looking': When Does Viewing Online Constitute Possession? (June 10, 2013). (2012) 36 Crim LJ 233-248; Monash University Faculty of Law Legal Studies Research Paper No. 2013/06. Available at SSRN: https://ssrn.com/abstract=2277239

Jonathan Clough (Contact Author)

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800

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