'Just Looking': When Does Viewing Online Constitute Possession?
(2012) 36 Crim LJ 233-248
Posted: 11 Jun 2013 Last revised: 4 Jul 2014
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: Suggested Citation