Substantive and Procedural Legislation in Estonia to Combat Webcam-Related Child Sexual Abuse

Abstract

Estonia is a civil law country influenced by the German legal doctrine. The virtual character of Sweetie (a neutral digital avatar of a 10-year-old girl) poses several challenges for Estonian material and procedural criminal law if used in practice. This chapter answers the question whether the use of Sweetie would be permitted under current material and criminal procedural law of Estonia. Under material criminal law, the act of requesting access to a webcam session with Sweetie is not criminalized, as Sweetie would not be considered ‘child pornography’. However, in the context of sexual enticement, law enforcement bodies have used police agents depicted as children and courts have declared such acts punishable as impossible attempts. Theoretically, enticing a digital avatar could be punishable under the same logic. In the case of making arrangements for meeting a child for sexual purposes, the law implies that the victim must be a ‘person’. Considering that this criminal act is a delict of abstract danger and that Sweetie is an ultra-real digital persona, one could argue that trying to meet with Sweetie for sexual purposes and making a preparatory act for this purpose also could be punishable as an impossible attempt under Estonian law. Although material criminal law provides room for interpretation, criminal procedure law sets limits to the use of a digital avatar for the apprehension of digital offenders. For Sweetie to be a tool for catching sex offenders online, the Estonian Code of Criminal Procedure would need to explicitly permit the use of digital avatars as their use could be categorized as a surveillance activity and would need a clear legal base. This is a debate Estonia is still to have.