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New Year. New Law. New Risks.
In the UK and many other jurisdictions, the publication of the following types of image is illegal: child pornography, images depicting necrophilia, bestiality and extreme (life threatening) sex acts. However, while publication and distribution of such images is illegal, it was not an offence to possess such images, with the notable exception of child pornography. This has been the situation in the UK for many years; however on 26th January 2009 a new law, ‘The Criminal Justice and Immigration Act 2008', comes into force that, under Section 63, makes possessing "an extreme pornographic image" an offence. This will make possession of images classified under the act punishable by up to three years in prison, with substantial fines. This article examines the potential effects of the new act from the point of view of the employer, whose employees may be storing images now classified as illegal on corporate computer systems. While this act only covers Northern Ireland, England and Wales, plans have been announced to introduce a similar law in Scotland. Section 63 of the Criminal Justice and Immigration Act 2008 From 26 January 2009, it is an offence for a person to be in possession of an extreme pornographic image. An “extreme pornographic image” is defined as: Pornographic: if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal. Extreme: if it depicts: an act which threatens a person's life, an act which results, or is likely to result, in serious injury to a person's anus, breasts or genitals, an act which involves sexual interference with a human corpse a person performing an act of intercourse or oral sex with an animal (whether dead or alive), and a reasonable person looking at the image would think that any such person or animal was real. Image: A moving or still image (produced by any means); Data (stored by any means) which is capable of conversion into a moving or still image. Punishment for an offence under this act is up to 3 years in prison. If a case is heard in a Magistrates' Court in England, Wales and Northern Ireland the maximum penalty available will be six months' imprisonment, or a fine of up to £5,000 or both. The maximum available prison sentence in the magistrates' courts in England and Wales will rise to 12 months when section 154 (1) of the Criminal Justice Act 2003 is brought into force. Where a case is heard in the Crown Court, the maximum sentence is imprisonment for three years for possession of images covered by Section 63(7)(a) or (b) (life threatening acts, or serious injury) and imprisonment for two years for possession of images of bestiality and necrophilia. In both cases an unlimited fine may also be imposed. Existing Laws In order to understand the potential repercussions of Section 63 of the Criminal Justice and Immigration Act 2008 it is useful to understand the existing laws of Northern Ireland, England and Wales which go hand in hand with it. Obscene Publications Act 1959 Under the Obscene Publications Act 1959 it is a criminal offence to publish an obscene article. A person will publish an article if he distributes, circulates, gives or lends it, or transmits it, where the material is stored electronically. An article is considered obscene if its effects are such as to tend to "deprave and corrupt" the individuals likely to view it. Under this act, an employee who downloads obscene material from the internet and circulates this material to colleagues through email, commits a criminal offence. Protection of Children Act 1978 Under UK law (and specifically the amended Protection of Children Act 1978), it is an offence to distribute, show or possess indecent photographs of children; under UK law a child is defined as a person under the age of 18 years. This also covers pseudophotographs of children, such as computer generated photographs. Therefore, the downloading, transmitting through email and viewing of such photographs all constitute a criminal offence. Employer's liability Section 63 of the Criminal Justice and Immigration Act 2008, Under the obscene publications act 1959, to protect itself from criminal proceedings under vicarious liability, an employer must show that it did not know of the publication, and that this absence of knowledge was not the result of negligence. In other words, the employer will have to prove, as with defamation and harassment/discrimination, that it took all reasonable steps to prevent incidents of email and internet abuse, and the enforcement of a clear communications policy is the best preventive measure. Maximum penalty under this act is 5 years in prison. Section 3 of the protection of Children Act 1978 Under chapter 37, section 3 of the protection of Children Act 1978, An employer may be prosecuted if this offence occurred with its consent or knowledge or if the offence can be attributed to the neglect from the company director, manager, or other officer of the business, then the negligent individual itself may be prosecuted as well as the company. Maximum penalty under this act is 10 years in prison. What does this act means to an employer? An Irish technology company conducts around 250 image audits for inappropriate material in organisations every year and while it is rare to find instances of child pornography on corporate networks, images and movies depicting scenes of bestiality and more extreme types of pornography such as extreme bondage or extreme sexual body modification are far more common. Until 26th January 2009, possession of such images did not constitute an offence. However, after this date the situation changed. An employer can still be held vicariously liable for possession of the newly criminalised image material should negligence, knowledge or consent be proven. What can an employer can do to reduce risk? An employer can, and should put gateway defence systems in aimed at preventing employees accessing sites which might put the employer at risk. In practice, the Irish company has found this type of preventative measure alone to have limited results. Employers should regularly scan PCs, files systems and email for inappropriate and illegal material and take appropriate actions based upon the content. In 2008, the company published figures from its audits of over 150 companies in the UK and Ireland, all of whom had gateway protection in place, it found that 28.5% of the PCs scanned, 14.4% of the email accounts contained digital pornography or other inappropriate images, and 3.6% of file server shares scanned held inappropriate images. According to advice from the UK Ministry of Justice regarding Section 63 of the Criminal Justice and Immigration Act 2008 if you come across prohibited material found in hard copy or on a computer it should be reported to the police in the same way as any other criminal offence. If you believe you have come across illegal pornographic material on a website then it should be reported to the Internet Watch Foundation (www.iwf.org.uk) to which reports about potentially obscene material can already be sent. The IWF can determine whether or not that website is hosted in the UK, and whether or not it is potentially showing material in breach of UK legislation. UK Ministry of Justice advise that if the material is on a computer, you should delete it. If it is in another form, such as paper, video or DVD, you should destroy it and dispose of it responsibly. Conclusion This new legislation it is a timely reminder for companies and organisations to check their potential exposure to the legal and/or reputational risk arising from the possession or distribution of inappropriate images. The definition and enforcement of policy, regular audits and a visible line of defence at the desktop is the only sure way of dealing with and ultimately putting a stop to this undesirable activity in the workplace. This is one area where the complete solution involves IT working with the HR and Legal departments. Article Directory: http://www.articledashboard.com This article was written by Colm Doherty of Pixalert www.pixalert.com – www.pixalert.com”>Data Loss Prevention | Block Porn | Email Monitoring Solution | Porn at Work. PixAlert is the market leader in products and services that provide detection of critical data for corporations. |
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