Online Sexual Grooming of Children, Obscene Content and Peer Victimisation: Legal and Evidentiary Issues

Abstract

As traditional methods for harming and abusing children become increasingly mediated through Web 2.0 technologies, a new dimension emerges for online child safety governance. Convergence has now made possible new avenues through which harms can be perpetrated against children. Difficult policy issues still have to be confronted as policymakers and regulators grapple with the dilemma of using the criminal law, in an environment where enforcement, rather than the application of its substantive rules, is proving to be a problem (Luuders et al., 2009). Additionally, the ramifications of an expanding child protection agenda for civil liberties and innovation are still uncertain (Lindsay et al., 2008). Policymakers and law enforcement are also having to deal with the issue of whether the criminal law should be used in cases where children become the offenders – sexual solicitation of other minors, hacking into social network profiles, posting hateful messages or defacing websites and distributing self-generated nude images of themselves. Is the criminal law outdated and unresponsive, or does living in a risk society require policymakers to reassess how we approach the strategies for extending legal standards and rules to an increasingly connected and “always-on” society? Indeed, it is a particularly relevant question to ask when reflecting on how the criminal law addresses these tensions either through direct State intervention or indirectly through the MSIG framework. These matters provide the background to the chapter, which is the legal and evidentiary issues emerging from the use of the criminal law in managing risks in three areas of online child safety governance: online sexual grooming, exposure to obscene content (with particular emphasis on child pornography) and peer victimisation. I integrate into the analysis an account of the key substantive criminal law rules to highlight its role and shortcomings when addressing the regulatory challenges in this area of child protection policymaking. Finally, some caveats may be necessary with regard to the discussion that follows. This chapter does not rehearse or critique the reports or scholarly works undertaken by researchers in this field (Akdeniz, 2008; Shariff, 2009; Brenner, 2010; Kerr, 2009). Neither does this chapter review the role of criminal law in virtual worlds (Lastowka, 2010). Even though these and other works provide some useful insights on the challenges posed by Web 2.0 technologies to the criminal law, the task undertaken in this chapter is deliberately narrowed to a consideration of three specific forms of online child safety incidents/risk-prone activities. The aim of the discussion is to reflect the nuances of online child safety governance with regard to the standards and principles the criminal law aims to uphold and, more specifically, examine the extent to which Web 2.0 technologies can be said to undermine its ability to promote certainty, order, trust and confidence. The governance challenge for law and its ability to secure compliance with its standards and principles lies at the core of the evolving MSIG framework aimed at confronting parental anxieties resulting from the vulnerabilities children face in an environment of de-centralised networks and information flows. Secondly, the coverage of these areas will be conducted against the background of the national legal system in England and Wales. Where appropriate, references will be made to relevant legislation, case law and materials from Australia, the United States and Canada, noting that some caution should be exercised when making comparisons between the approaches in these jurisdictions, given that governments ground their legal and policy responses on their “legal traditions, approaches, techniques (e.g. direct regulation vs. self- or co-regulation), and law enforcement practices” (Gasser, et al., 2010: 10). The differences in legal traditions and policy responses do not detract from the tasks undertaken in this chapter. The implications of these rules for evidentiary investigations and online intermediary liability will also be identified and explained.