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In the UK, the Criminal Justice and Public Order Act 1994 amended the Protection of Children Act 1978 to add the concept of pseudo-photographs to the statute books.
According to section 7 of the Protection of Children Act 1978,
The Sexual Offences Act 2003 raised the age of a child to 18.
According to section 7 of the Protection of Children Act 1978,
In relation to indecent pseudo-photographs of children, section 1 of the 1978 Act makes it an offence for a person to (a) make them; (b) distribute or show them; (c) possess them with an intention of distribing or showing them; or (d) advertise that they are shown or distributed; and section 160 of the Criminal Justice Act 1988 makes it an offence simply to possess indecent pseudo-photographs of children.
Whether or not a pseudo-photograph is indecent is a question of fact, and as a question of fact it is something for a jury or magistrate to decide. The jury should apply the standard of decency which ordinary right-thinking members of the public would set - the "recognised standards of propriety" as R v Stamford [1972] puts it.
The concept of pseudo-photographs was created to cover a perceived lacuna that was thought to make the law impotent in the case of a manipulated photographs.
In 1993/4, it was reported to the Home Affairs Select Committee that the Crown Prosecution Service were advising against prosecution in such cases since there was considerable doubt whether a manipulated photograph was an indecent photograph of a child for the purposes of the 1978 Act. The case of Shakespeare was given as example, in which indecent images had been created by adding the head of a female child to an adult body.
Images created by digital manipulation were of particular concern - for example, a photograph of an adult edited using computer software to have the head of a child or to have certain features changed (e.g. smaller genitalia) to give the appearance of a child (Wasik & Taylor, 1995, Chap 5.9).
Sub-sections 84(2) and 84(3) of the Criminal Justice and Public Order Act 1994 amended the Protection of Children Act 1978 to create the offence of making an indecent pseudo-photograph of a child and to bring pseudo-photographs within the scope of the other offences under the 1978 Act.
In the 2002 discussions on measures to harmonise European Union Member State's legislation on the sexual exploitation of children and child pornography, the British Conservative MEP Timothy Kirkhope lobbied for the inclusion of pseudo-photographs in any new EU rules, saying that the creators of such things as detailed, cartoon-like pictures of children in indecent poses would still "exploit" and "end up abusing children". (The Sprout)
According to Kirkhope, "Pseudo-photographs are technically photographs, but they are created by computer software such as MS Paintbrush by using more than one picture" (apparently quoting Yaman Akdeniz, Cases & Materials).
While the creation of a pseudo-photograph would not involve a child in any indecent activity, such images were said to excite paedophile tendencies in adults equally as much as real photographs (Le Hérissier).
Another justification for the introduction of the concept of pseudo-photography was that such an image might lead to an investigation to ascertain whether or not the child shown in it was actually abused (Wasik & Taylor) - this would obviously cause great distress to the child and family involved, and would be a waste of valuable police resources.
Paedophiles were said to use photographs as a way of making children believe that "it's all right because other children do it too" and pseudo-photographs were thought to be just as suited to this purpose (Feather).
It was also claimed that indecent pseudo-photographs would have to be criminalised or their existence would make the prosecution of indecent real photographs impossible since it would be difficult to distinguish between real photographs and manipulated images (Akdeniz, Governance). UK police were said to believe that those who make pseudo-photographs or possess them go on to abuse children - from that point of view, making or obtaining possession of pseudo-photographs are acts preparatory to abuse.
The Protection of Children Act 1978 (as amended) does not define how a pseudo-photograph is made. This is to avoid the Act being limited to covering only known forms of making images. In this way, as yet unthought of forms of image production are intended to be covered.
While Act does not define how a pseudo-photograph IS made, it does tell us how it is NOT made: a pseudo-photograph is NOT taken.
It is a presumption of statutory interpretation that different words have different meanings and it was thought necessary to add the concept of pseudo-photography to the legislation. Since Parliament does nothing in vain, a pseudo-photograph is not a photograph.
The Oxford Concise English Dictionary defines a photograph as "a picture made by a camera". A pseudo-photograph, then, is an image that appears to be a photograph but which was not made with a camera.
A pseudo-photograph is an image that appears to be a photograph.
A photograph does not appear to be a photograph, it simply is one. Despite all the tricks that a photographer can use (multiple exposures, unusual angles, time delay, etc), a photograph is taken to be a record of a state of affairs that actually existed at a particular time, even though that state of affairs might have been extremely fleeting. A photograph shows reality.
Bearing in mind some of the arguments made in favour of the criminalisation of pseudo-photographs - in particular that a pseudo-photograph might lead to an investigation to ascertain whether or not the child shown in it was actually abused - it is clear that their main thrust is that a pseudo-photograph is a realistic image: a pseudo-photograph appears to show reality, but in actual fact depicts a state of affairs that never existed.
As an example, take the created for the film "Pretty Woman" in which Julia Roberts' head is superimposed on an anonymous model's body. Taken on its own it is convincingly realistic - but the knowledge that the body is not Mrs Roberts' reveals the image to be a "pseudo-photograph". That image was presumably created on a computer or with very careful application of some very delicate scissors and some large photographs of Mrs Roberts' head and the model's body.
In addition to images composed by manipulating images of real people, objects or scenes, there are also images that consist completely of computer generated imagery - for example scenes from The Lord of the Rings films in which the Gollum character appears. There are many other scenes from those films that are convincingly realistic but show things one knows never existed as real objects or actors placed before a camera.
A pseudo-photograph, then, is an image that is realistic enough to be taken as showing a historical state of affairs but something external to the image itself reveals this not to be the case.
It is important to note that, under UK law, there is no restriction on the manner in which a pseudo-photograph can be created save that it cannot be made in the same way as a photograph. Any image that is photo-realistic but not photographic can be considered to be a pseudo-photograph.
This gives rise to the possibility that the work of various artists can be considered pseudo-photographs, for example artists in the Photo-realism movement.
The "Water Taxi, Mount Desert" image by
William-Adolphe Bouguereau's "Cupidon" might not appear to be pornographic as a painting - and certainly, many people would find such a claim extremely distasteful and defend Bouguereau against a charge of being a pornographer.
But an edited photograph of it might be considered to be an indecent pseudo-photograph of a child, and hence be classed as child pornography.
In R v Oliver, the Court of Appeal judged that "nudity in a legitimate setting" is not indecent. However, an image of a child who is nude in a "legitimate setting" can still be considered to be indecent if the image was "indecent in the context in which it was taken".
"Cupidon" is nude simply because the artist wanted to show a nude child - hardly a "legitimate setting".
Furthermore, some people may consider the classification of such images of paintings as indecent pseudo-photographs of children to be "right and proper", since they argue
They would also claim that children posing nude for "soft core" or "Lolita" type wbsites are being abused, and that the subsequent purchasing and viewing of the photographs re-victimises the children. From this viewpoint, there can be little to distinguish a child posing nude for a painting from a child posing nude for a photograph
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