Changes in Polish legal system concerning child pornography on the Internet
On the March 18th 2004 formal conditions to bring the Convention of the European Council on Cybercrime into force were met. On the same day Polish Parliament passed a new law adjusting respective internal criminal regulations to the decisions of the Convention (changes to the Polish Penal Code from March 18th 2004, Dz. U. Nr 69, position 626).
According to a new law, possessing of the child pornography became punishable crime. The introduction was made independently of the kind of the carrier on which such contents were consolidated.
The second novum was raising the age border to 18 in cases of children to be used in production and proliferation of child pornography. As stated above, this change, however, concerns only production of “a professional” character that is carried out in order to spread the pornographic materials (art. 202 § 3 of Penal Code). However, the age of 15 (art. 202 § 4 of Penal Code) was kept as the age border for consolidating, bringing, keeping or possessing the pornographic contents for purposes of a not public distributing character (for example for a personal use). Also the idea of penalizing producing pornographic materials presenting unreal children (morphing technology) was rejected (Adamski A. 2004).
Legislation on consolidating, producing, offering, distributing, transmitting, procuring and possessing child pornography in a computer system
According to art. 202 § 3 of Penal Code “each person who produces, consolidates or brings or transmits or publicly presents the pornographic contents with the participation of the child or the pornographic contents connected with presenting violence or making use of an animal is liable to imprisonment for a term from 6 months to 8 years”.
According to the Polish Law on Copyrights and respective legal acts, the term “spreading” does not have to be effective and does not demand an economic aim. The offer of an exchange or a sale of the materials (for example the site www, availability in the files P2P exchange system ) is enough to state that the spreading has taken place.
The presentation of an offer is enough to launch legal procedure and it is not necessary for the transaction to take place. Nevertheless, according to the Copyrights Law, making such content available, for example, to family members is not treated as “spreading”.
According to the above regulation, “producing” is not synonymous to “consolidating”. It should be rather understood as printing, copying and all other activities which prepare to spreading.
Enacting the term „bringing” is very difficult from the legal point of view. According to Polish law “bringing” assumes that the subject should cross the national border. However, in the case of the Internet, it is an equivocal definition. From the technical point of view, each attempt to watch www site or to download the available material on server physically located beyond Polish borders is already treated as “bringing”.
Art. 202 § 4 pf Penal Code states that “every person who makes, imports, stores or possesses pornography with participation of a child under 15 is liable to imprisonment for a term of 3 months to 5 years”.
The participation of the child has to include an involvement in certain sexual activities. Criminal responsibility for consolidating includes a person who directly consolidates pornographic contents (camera operator, photographer) as well as producer and author of a screenplay.
Art. 202 § 5 of Penal Code states that “the Court may order tools or any other objects used or designed for committing offences defined in sections 1–4 to be forfeited, even if such tools or objects are not owned by the offender.”
Legal regulations concerning the activity of making pornography available to children
According to art. 202 of Penal Code:
1. “Whoever publicly presents pornographic material in such manner that it is imposed upon a person who may not wish so, shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 1 year.
2. Whoever present pornographic material to a minor under 15 years of age or makes it available to him/her items of this nature, shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years”.
The above regulation is extremely difficult to enforce in practice as (as stated above) there is a lack of the definition of term “pornographic contents” in Polish legal system. The basic obstacle, however, is the construction of this regulation. It demands indicating the certain person, who has presented or made improper materials available to the child and proving this fact, which turns out to be often impossible.
Information on the age of consent to sexual activity vis-a-vis the age used in child pornography legislation
The legal age of consent for sexual activity is fifteen (15) years in Poland. According to art. 200 § 1 of Penal Code "every person who has a sexual intercourse with a child under 15 or undertakes any other sexual activity with such a person or makes him or her submit to or perform such activity, is liable to imprisonment for a term from one to ten years”.
In order to fulfill international commitments, Polish legislator raised the age border to 18 as the age of child protection from being sexually abused through production and proliferation of child pornography. This change, however, concerns only “professional” pornographic materials that are carried out in order to be spread and publicly distributed (art. 202 § 3 of Penal Code). However, the age of 15 (art. 202 § 4 of Penal Code) was kept as the age border for consolidating, bringing, keeping or possessing the pornographic contents with child’s participation, if the aim was not public spreading and distributing.