As briefly discussed previously, images of minors engaged in sexual activities, sexually provocative nudity or which are designed to evoke a sexual response (even through a mere focus on the genitalia of the minor with provocative clothing) can qualify as “child pornography” in the United States and many developed countries around the world. They are treated differently from adult pornography in most cases, which has greater free speech protections in the US based upon the fact that a child is molested or sexually exploited in their production. Adult pornography can be legal, even if extremely explicit, if there are artistic, scientific or other redeeming virtues of the content. Child pornography, no matter how artistic, can never be deemed legal in the US.
In many jurisdictions, worldwide, the age of consent controls the ages for determining whether the images are child pornography or adult pornography. In the US, under federal law, pornographic images of minors under the age of 18 can be deemed child pornography and subject to the extreme laws designed to protect children from sexual exploitation.
Anyone in possession of child pornography, under US law, can be charged with serious crimes and convicted unless they can prove that they had no more than 4 images and the possession was temporary for the purposes of reporting the images to law enforcement or they were in the process of deleting the images. To avoid the draconian effects that this would have for networks where user-generated-content can be posted containing adult content, child pornography and legitimate general audience materials in the same way, largely without pre-moderation, safe harbors were created for online services that might find themselves unwittingly hosting child pornography.
To satisfy the US safe harbor, in December 1997, a Cybertipline was created to be operated by the US National Center for Missing and Exploited Children. As long as the networks and online services do not have editorial control over the content and comply with the registration and reporting requirements, they cannot be charged with the possession or facilitation of child pornography even if the images are ultimately discovered on their networks. They do not have an obligation to search for it or screen content to make sure it is not posted. They merely must report that they find in compliance with the law.
The safe harbor doesn’t address the handling of the images or videos from the time discovered until turned over to the Cybertipline, however. That’s where the careful handling of these images and videos is crucial for both the moderators and the network itself.