USA
- Hyperlink to child pornography =
Distribution?
According to a military appellate court's decision
in the USA, the act of distributing a hyperlink to an online source of child
pornography does not subject the defendant to criminal liability for
distributing the child pornography available at that web site.
P. Navrestad was charged under Article 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000), with distributing and
possessing child pornography in violation of the Child Pornography Prevention
Act of 1996 (CPPA), 18 U.S.C. §§ 2251-2260 (2000). He had send a hyperlink to a
Yahoo! Briefcase during an Internet chat session. The linked to site contained
child pornography images. 18 U.S.C. § 2256(8) defines child pornography as “any
visual depiction, including any photograph, film, video, picture, or computer or
computer-generated image or picture . . . of sexually explicit conduct, where .
. . the production of such visual depiction involves the use of a minor engaging
in sexually explicit conduct." "Visual depiction” in turn, “includes . . .
data stored on computer disk or by electronic means which is capable of
conversion into a visual image.” 18 U.S.C. § 2256(5).
So the key question was whether a hyperlink
contains “data stored . . . by electronic means which is capable of conversion
into a visual image." The court stressed the fact that a hyperlink only provides the
recipient with a path to another website. It does not contain data itself. So
the court held that Navrestad did not distribute child pornography. But the
decision was a close one, 3:2. In his dissenting opinion, judge Effron wrote: "The
recipient’s ability to access and use images transmitted by hyperlink is
functionally indistinguishable from the ability to access and use images
transmitted as individually saved files."
