Seeking damages for child pornography

“Seeking damages for child pornography” – an article published in the Personal Injury Law Journal in September 2011.

Child pornography is a multi-billion dollar industry. The statistics published by the Child Exploitation and Online Protection Centre (www.ceop.police.uk) demonstrate the dramatic increase in arrests arising out of this kind of crime. The problem is recognized globally by Article 34 of the United Nations Convention on the Rights of the Child[1] which enjoins member states to protect children of exploitation of this nature. 

The criminal law has striven to keep pace with the problem. The Protection of Children Act 1978 first created the offence of taking or permitting to be taken an indecent photograph of a child and is now the main means by which persons making or possessing child pornography are prosecuted. [2] This article deals with the available civil remedies. 

Clearly a person who abuses a child in the course of creating a film will be liable to the child for assault.  However what about a person who simply takes the film? The issue came up in the case of C v D.[3] In that case the Defendant had filmed the Claimant in the showers at a school. At the trial, counsel conceded that these allegations fell short of assault, and that there was no breach of duty or negligence. However they were nonetheless deliberate acts that were proven and which it was alleged had caused psychiatric injury. Field J reviewed a series of cases in this area, in particular that of Wilkinson v Downton[4] where a malicious practical joker had told his victim that her husband had suffered a serious accident, thus causing her psychiatric injury. In C v D, there was an actionable wrong, under the Wilkinson v Downton principle but that remedy was only available if the filming of the Claimant had suffered psychiatric injury, and in this case it had merely been distressing. 

Nonetheless the case demonstrates one route by which a Claimant might recover damages against a person who films him for sexual gratification. Another route (which was not available in C v D as the abuse occurred between 1989 and 1993) was a claim under the Protection from Harassment Act 1997. 

Section 1 of the 1997 Act prohibits a person from pursuing a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment of the other. Section 3 provides for a civil remedy; damages may be awarded for (amongst other things) any anxiety caused by the harassment and any financial loss resulting from the harassment. Consequently psychiatric injury is not required for such a claim. 

The 1997 Act fills a gap in the law, but the writer would argue that other routes to compensation are available. A claim in assault may still be possible. According to the case of Collins v Wilcock[5], an assault is an act that causes another person to apprehend the infliction of immediate, unlawful, force on his person. Other cases indicate that words or gestures alone, or indeed silent telephone calls, can be sufficient to constitute an assault.[6] 

The issue of assault comes up in cases of voyeurism, where a person may film or photograph a child for their own sexual gratification, but without their knowledge and without any actual touching taking place. It is arguable that there is a hostile intention on the part of voyeur insofar as he intends to use those photographs for his own sexual gratification, and that he is reckless as to their effect. His actions are certainly unlawful and in that way he is acting with hostility. The “assault” at the time will not cause the victim to apprehend any force, because he or she does not know what is being done. The situation changes if the victim then discovers the photographs or is alerted by the authorities. At that stage, the victim would have very good cause to apprehend the threat of sexual violence. The hiatus between the deliberate act and its result should not preclude the voyeurism from being an assault.

Secondly another possibility would be a human rights claim, where the perpetrator is a public servant, such as a care worker. Articles 3 (protection from torture and oppression) and 8 (right to privacy) of the European Convention on Human Rights would be relevant. 

Thirdly there may be a claim under the Data Protection Act 1998. Section 36 of the 1998 Act makes it clear that the Act will not apply to “personal, family or household affairs” but as we have seen child pornography is a business. The images taken of the victim are “sensitive personal data.” Section 2(c) of the 1998 Act defines such as data as including personal data consisting of information as his sexual life. Section 1 states that “personal data” means data that relate to a living individual who can be identified from that data. 

Section 13(1) of the 1998 Act says that an individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage. 

The problem is again defining “damage”. In Campbell v Mirror Group Newspapers[7] the court held that nature of and details of the therapy that Naomi Campbell was receiving at Narcotics Anonymous including the photographs with captions were clearly information as to her physical or mental health or condition and were therefore “sensitive personal data”. Miss Campbell recovered damages for distress because her claim came under Section 13(2)(b) of the 1998 Act. The photographs had been taken for one of the “special purposes” which was journalism. Section 13(2)(a) stipulates that otherwise the Claimant must suffer “damage.” Mr Justice Morland in his judgment said that “damage” in Section 13(1) and Section 13(2)(a) meant special or financial damages in contra-distinction to distress in the shape of injury to feelings. That indicates that the damages must be serious, but a victim of child pornography may well suffer psychiatric damage as a result of discovering that their images have been traded across the internet, quite apart from actual financial losses that may accrue. 

Finally we have a potential claim under the 2008 Criminal Injuries Compensation Scheme. Obviously the abuse that takes place under the eye of the camera is a crime of violence, but it is submitted a further serious crime is also taking place for which the 2008 Scheme provides no remedy, namely the distribution of those images.[8] The issue of actual damage is not such a problem because Paragraph 9 of the 2008 Scheme states that “injury” can be temporary mental anxiety, medically verified. Furthermore the victim does not have to be put in “reasonable fear of immediate physical harm” because this is a sexual offence. The real problem is persuading the Authority that a “crime of violence” has taken place. 

The courts have said in various cases that this is a “jury” question. In LC v CICB[9] a man exposed himself to a child. The Board rejected the claim on the grounds that it was not satisfied that on the particular facts of the case, she had been the victim of a crime of violence. The court said that indecent exposure could amount to a crime of violence but not necessarily so. It is submitted that child pornography is a crime of sexual exploitation, which can only take place by the abuse of children. The term “crime of violence” should reflect what is a modern problem. The harm done to the child is the repeated invasion of the child’s privacy and the creation of a market for such imagery that encourages its continued production and distribution. 

The Powers of Criminal Courts Sentencing Act 2000 may have a role here. Under this Act a criminal court has the power to make a compensation order in respect of a victim of crime. Section 130 states that a court by or before which a person is convicted of an offence may on application or otherwise, make an order requiring the convicted person to pay compensation for any personal injury, loss or damage resulting from that offence or any other offence which is taken into consideration by the court in determining sentence.

We now come to the issue of the person who simply possesses the indecent image. He has never met nor abused the child but as argued above, he is helping to create a market for this material. The issue of a claim only arises when the victim finds out that the images are in his possession. With the exception of the Data Protection Act 1998 it is difficult to see how any claim could lie against the possessor of the images. Should the law create a means of pursuing a civil claim akin to vicarious liability, where the possessor of an indecent image is held to be strictly liable for the Claimant’s damage? 

This issue has come up in the United States, which enacted within the Violence against Women Act 1994 a section entitled the Mandatory Restitution for Sex Crimes. This mandates the issue of a restitution order for victims of all acts of sexual exploitation. An order for restitution directs the Defendant to pay the victim the full amount of the victim’s losses as determined by the court, which includes medical treatment, lost income, legal costs and any other losses. 

In the case of United States v Hesketh[10] the Defendant, a former Pfizer executive had pleaded guilty to possession and distribution of child pornography, although he himself had not participated in the sexual exploitation that produced the material. The victim “Amy” had been notified by the authorities that her picture was amongst those found in his possession and she applied to the court for compensation for the effect that his criminal behaviour had on her. The court made a restitution award of $130,000 in her favour following a negotiated settlement with the Defendant. Amy went on to receive further larger awards from other courts in the United Courts, when her image was discovered in the hands of other Defendants.

Unsurprisingly great concern has been expressed about the implications of these judgments. The original 1994 Act defines a “victim” as an “individual harmed as a result of a commission of a crime” but it does not appear to require that the victim be a person “directly and proximately harmed”. Therefore it is arguable that any kind of “harm” resulting from a qualifying offence is sufficient to create victim status. However other courts in the United States have held that there has to be some kind of causal connection between Defendants who possess pornographic images of children and the victims. [11]

Child pornography is an industry that thrives on human suffering of the most appalling kind. The law should strain to provide compensation for those children who have been its victims, not simply for the abuse that they suffer but the fact that their suffering is repeated time and time again in cyberspace.