Talk:Legal status of fictional pornography depicting minors/Archive 2

Archive 1

Archive 2

Change explanations

The previous writing misunderstood the affirmative defense in the law. It is not true that simply showing that the minors in the pornography are not real would avoid a violation of the law. Dwight Whorley was specifically convicted under the PROTECT Act for "obscene Japanese anime cartoons". It was explicitly clear that the drawings were not real children, and the law still applied.

As has been explained previously, the law distinguishes between pornography law and obscenity law. Under obscenity law, depictions of minors need NOT be indistinguishable from real minors to be illegal. They just need to be obscene as laid out in Section 1466A. It's critical that the article make this difference in law clear, and my edit does that. https://www.justice.gov/criminal-ceos/citizens-guide-us-federal-law-obscenity

I appreciate the change in wording and attempts to improve this article. Although Whorley was convicted, the law itself does include the affirmative defense. A defense--not a guarantee of said defense working, but a defense nonetheless. Much like Fair use is an example of an affirmative defense of copyright infringement. It remains to be seen that this defense is wholly rejected, and I would like to see a pattern of cases before we rip it out--given it's literally part of the law cited. Tutelary (talk) 22:13, 13 November 2019 (UTC)

This appears to again come down to the distinction between US obscenity law and US child pornography law. The obscenity law is what Dwight Whorley was convicted for, and does not contain the affirmative defense that the child pornography law does. It even states directly; "(c)Nonrequired Element of Offense — It is not a required element of any offense under this section that the minor depicted actually exist." Thus the affirmative defense only applies to the child pornography law, and not the obscenity law. It's important that the article underscore this distinction if it's going to include the affirmative defense. Edit5001 (talk) —Preceding undated comment added 05:55, 14 November 2019 (UTC)

US section

I think most of US section should be started from scratch and condensed as it currently doesn't give an optimal overview of what the status of the law is and is far longer than any other section. Federal law in the US on this issue currently stands as follows, and this should be made clear in the section;

1) When fictional pornography depicting minors is indistinguishable from a real minor, it is illegal regardless of the obscenity standard laid out in Miller.

2) When fictional pornography depicting minors is deemed obscene, it's illegal as per the standard laid out in Miller.

What the Ashcroft case did was enforce the obscenity requirement laid out in Miller, preventing a law that said "Any type of fictional pornography depicting minors is illegal (regardless of obscenity)". There's a lot of confusion around this standard because of this but the way I laid it out is both what courts have established and is what's published in current US government law. The Wikipedia article should also reflect this. — Preceding unsigned comment added by Edit5001 (talk • contribs) 02:50, 11 October 2019 (UTC)

Regardless, there needs to be a summary of some sort, whether it's "it's legal", "it's illegal", or "it's complicated". At a minimum, a summary could be simply added to the current content. --Hirsutism (talk) 19:41, 5 December 2019 (UTC)

I agree with you. Listing the entire history and a bunch of cases relating to it is not the ideal way to present the US section. The issue could be easily summarized as something to the effect of "Under current US law, drawn pornography of minors is not treated as child pornography but it may be found illegal under US federal and state obscenity law if it fails the Miller obscenity test". Edit5001 (talk) 04:22, 6 December 2019 (UTC)

Summarizing US section

I support the suggestion, which has also been made by a few others on this talk page, to highly abbreviate the US section from what it currently is. I think it should simply report current law rather than its current long-winded format that includes several cases. The section can make note of several cases involving the law, but it's unnecessary to break down every single one in detail on this page, especially since this isn't true for any other country on the page. Furthermore, many of the cases were sourced from Original Research and unreliable sources. Edit5001 (talk) 04:30, 29 April 2020 (UTC)

Remember when OP was topic banned from editing articles relating to American politics? Pepperidge Farm remembers. Ian.thomson (talk) 09:28, 29 April 2020 (UTC)

I have reverted their "summarizing", given that it omits 10k words of context and history regarding this subject. The USA section does need work, but not just "remove everything". I also wish I knew that beforehand, Ian.thomson. Tutelary (talk) 16:52, 29 April 2020 (UTC)

Situation in Germay

Thank you for the helpful edits.

For completing the edit here the missing informations:

original research:

In its decision from 2014 the Federal Court of Justice stated that while adult pornography must have a degradig character, every sexual depiction of minors is degrading itself. Link: http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&nr=67651&pos=0&anz=1 Commercial or non commercial Publication is prohibited for its potential violation of the guaranteed freedom of personal developement of minors as immature humans. Link: http://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0023 Link: https://www.servat.unibe.ch/dfr/bv083130.html#Rn033

citation needed:

If a court decides against a former official or private legal opinion there is no punishment for the distributer. Also for beeing a crime every aspect of the deed has to be intentional. Link: https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p0136

In its decision from 1990 about the publication of the Josephine Mutzenbacher novel the Federal Constitutional Court stated that child pornography can be classified as art. Link: https://www.servat.unibe.ch/dfr/bv083130.html#Rn028

So every legal decision is heavily dependent on the individual case, while balancing the personal freedom of minors and the freedom of art. For example the unedited version of the complete To Love Ru series was passed for persons over 16 by the FSK (Self-Regulatory Body of the Movie Industry), because standards for youth pornography are more lax. Link: http://www.fsk.de/?seitid=491&tid=70 In contrast the third episode of My Girlfriend is a Faithful Virgin Bitch was deleted for its depiction of a minor imitating a sexual position with a stuffed toy. Link: https://sumikai.com/mangaanime/anime/anime-on-demand-entfernt-3-episode-von-my-girlfriend-is-a-faithful-virgin-bitch-193610/ — Preceding unsigned comment added by User21011997 (talk • contribs) 10:48, 30 June 2020 (UTC)

Ireland

Was floating through talk pages n noticed the Ireland mention from 2009. I dont really know how to edit the main pages, but if someone else wants to, heres link to info http://www.irishstatutebook.ie/eli/1998/act/22/section/2/enacted/en/html#sec2

Short version: all lolicon is likely illegal. — Preceding unsigned comment added by Kysier (talk • contribs) 17:30, 11 July 2020 (UTC)

Sweden

@Knowledgekid87: is "illegal" really the best category to put Sweden? The Supreme Court decision makes it clear that it is not illegal as long as it is not realistic. (This also makes me think that classifying it into "illegal" vs "legal" is kind of a fruitless exercise in any case, because there's a lot of complexities and complications that can't be captured by that dichotomy. Take the US: mere possession is not illegal, but people have been successfully prosecuted for obscenity. Maybe we should make a third category for context-dependent cases? ("Legality depends on context," or something like that.) Sandtalon (talk) 20:03, 6 March 2021 (UTC)

Okay sure.... we shouldn't just leave it as a list of countries though for the reader to infer. Some countries are straight-forward while others have this gray area. - Knowledgekid87 (talk) 20:33, 6 March 2021 (UTC)

@Sandtalon: I added another header for countries where things are not clear. - Knowledgekid87 (talk) 02:58, 7 March 2021 (UTC)

Costa Rica

I found these two pages but I can't translate them... [1], [2]. I think they establish the legal status of fictional pornography in the country if anyone can translate. - Knowledgekid87 (talk) 16:10, 14 March 2021 (UTC)

Map issues

The following countries need changing on the world map:

• Ireland - Light Blue to Dark Blue (Fictional child pornography is definitely illegal there per sources.)

• Kazakhstan - Dark Blue to Gray (Nothing found on the subject.)

• Macau - Light Blue to Gray (Nothing found on the subject.)

• Papua New Guinea - Dark Blue to Gray (Child pornography is illegal in this country, I could find nothing mentioning "fictional" though so this color is a stretch.)

• Spain - Dark Blue to Light Blue (Spanish law has F.C.P. based on "realism")

• Taiwan - Dark Blue to Gray (Nothing found on the subject.)

- More to come... - Knowledgekid87 (talk) 02:29, 9 March 2021 (UTC)

I've made these changes to the map on Commons. — Goszei (talk) 21:03, 10 March 2021 (UTC)

Thanks Goszei I am bad with these types of maps. Other changes need to be made too as pretty much any shaded country which isn't mentioned in the article (other than pink and orange shaded countries which ban porn all-together or allow all types) is WP:OR right now. - Knowledgekid87 (talk) 00:46, 11 March 2021 (UTC)

• Colombia - Gray to Light Blue - (This is per a 2018 ruling)

• Greenland - Dark blue to Gray (Nothing found)

- Knowledgekid87 (talk) 01:14, 11 March 2021 (UTC)

 Done — Goszei (talk) 08:13, 14 March 2021 (UTC)

African countries

• São Tomé and Príncipe - Gray to Orange (per info at Legality of child pornography)
• Equatorial Guinea - Gray to Orange (per info at Legality of child pornography)
• South Sudan - Orange to Gray (Nothing is sourced to support this)

The following countries have laws that make actual (real) child pornography illegal, but make no mention of "fictional" or "simulated". This lack of a definition makes the law unclear (WP:OR) unless it can be proven otherwise

• Burkina Faso - Dark Blue to Gray (Nothing found within the law stated on the subject. [3])
• Burundi - Dark Blue to Gray (Nothing found within the law stated on the subject. [4])
• Cameroon - Dark Blue to Gray (Nothing found within the law stated on the subject. [5])
• Republic of the Congo - Dark Blue to Gray (Nothing found within the law stated on the subject. [6])
• Guinea - Dark Blue to Gray (Nothing found within the law stated on the subject. [7])
• Lesotho - Dark Blue to Gray (Nothing found within the law stated on the subject [8])
• Liberia - Dark Blue to Gray (Nothing found within the law stated on the subject [9])
• Madagascar - Dark Blue to Gray (Nothing found within the law stated on the subject [10])
• Mauritania - Dark Blue to Gray (Nothing found within the law stated on the subject [11])
• Mauritius - Dark Blue to Gray (Nothing found within the law stated on the subject [12])
• Mozambique - Dark Blue to Gray (Nothing found within the law stated on the subject [13])
• Namibia - Dark Blue to Gray (Nothing found within the law stated on the subject [14])
• Niger - Dark Blue to Gray (Nothing found within the law stated on the subject [15])
• Rwanda - Dark Blue to Gray (Nothing found within the law stated on the subject [16])
• Togo - Dark Blue to Gray (Nothing found within the law stated on the subject [17])

 Done — Goszei (talk) 19:44, 19 March 2021 (UTC)

United States "Current Summary"

@Goszei: I will look over it later today or tomorrow. The first question I would have just by a glance though is: "Why are real children mentioned in the summary when the article focuses on ""fictional"" pornography?" - Knowledgekid87 (talk) 21:39, 5 April 2021 (UTC)

I think it is a helpful to show the larger picture for the reader (mainly because I think it is important as background to draw attention to the Court's rulings in Miller and Ferber, which were affirmed in Ashcroft). — Goszei (talk) 21:41, 5 April 2021 (UTC)

Potential new title discussion

This was previously a RM, but I am retracting to discuss some more. — Goszei (talk) 00:51, 6 April 2021 (UTC)

Legal status of fictional pornography depicting minors → Legal status of virtual child pornography – "Virtual child pornography" is the name used in the scholarly and legal literature for the topic of this article: pornographic material created without involvement of real children. ([18]) This topic includes two relevant categories: non-sexual depictions of children edited to become pornographic, and pornographic depictions with wholly-fictional child characters. The article should be very clear on these definitions, especially because laws often separate them. I understanding some of the rationale in having "fictional" in the title to make this clear there, but for title purposes we should the terminology in the literature, and then explain (as the literature does).

There are also some scoping complexities created here by the existence of our article on Simulated child pornography ('simulated' and 'virtual' are treated as synonyms in the literature). I suggest that this article be renamed as I propose, and that the other article be redirected+merged here. I think this is would better-serve readers by making this a 'subtopic' of Legality of child pornography; we can have a 'Definitions' section in this article that discusses the categories like I mentioned above, and then the rest can be about the laws globally. — Goszei (talk) 22:53, 5 April 2021 (UTC)

• Comment - I don't think "virtual" and real world material in the form of books or drawings is the same thing. Have you checked the legal definition for countries that have incorporated it into their laws? Japan uses "non-existent", Finland uses "realistically depict" [19], Germany uses "realistic" [20], Sweden uses "drawings" [21]. I think the term "virtual" describes electronic forms of child pornography or close to reality images. - Knowledgekid87 (talk) 00:33, 6 April 2021 (UTC)

I accept there are some confusing elements around the word "virtual". It can mean both "simulacra" (as in fictional), and "digital" (as in made with a computer), and these concepts overlap in particular when it comes to the thing that governments care most about when regulating: a computer-generated image that looks realistic and virtually indistinguishable from a real child. Obviously this doesn't apply to categories like lolicon manga, which is virtual in the first sense (fictional) but not necessarily in the second (computer-generated).

On further thought, a better title may be "Legal status of simulated child pornography", which avoids this problem. Even organizations like ECPAT seem to contradict themselves: [22] here it says "virtual CP" means all CP without a real child (including computer-generated morphs and cartoons), which it explains further in this terminology handbook [23] (page 40), saying "realism of such images creates the illusion that children are actually involved". Obviously this is contradictory by lumping in usually-unrealistic manga/anime in the same breath... — Goszei (talk) 00:49, 6 April 2021 (UTC)

"Simulated child pornography" is a highly-rare term, according to GScholar ([24]). Likely not an acceptable title, considering that. — Goszei (talk) 02:56, 6 April 2021 (UTC)

I have retracted the RM since I feel it was a little half-baked. Wikipedia should certainly not contribute to the conflation of these concepts. The current title works on the specificity front, but it just strikes me as a phrasing not really used in the wild from reading sources on this topic, though as demonstrated above, perhaps there's not a better one. In any case, I think the article needs to be more clear about these definitions in the body. I would like to shift the discussion towards what should be done with the Simulated child pornography article, rather than a title change for this article.— Goszei (talk) 00:55, 6 April 2021 (UTC)

I will take a step back and note that this article was once titled "Legal status of drawn pornography depicting minors" and was moved without discussion in October 2020, which complicates the scoping question. — Goszei (talk) 01:08, 6 April 2021 (UTC)

Maybe the change needed is more simple and obvious: what about a move to "Legal status of fictional child pornography". Question: does "pornography depicting minors" say/imply something different than "child pornography"? I just stumble over the "depicting minors" on first read, and I feel like "fictional child pornography" get the message across without distorting or mis-scoping the topic. — Goszei (talk) 03:02, 6 April 2021 (UTC)

problems

What are the problem that are facing some african countries??? — Preceding unsigned comment added by Ahm tess (talk • contribs) 08:49, 10 October 2021 (UTC)

Redirect or restructure

I am proposing either a redirect to Legality of child pornography or a similar structure to that article in the form of tables for countries. A redirect is self explanatory and makes sense here as information regarding fictional pornography is already mentioned. The second option is to expand the scope of this article and go into topics such as "Virtual" versus "Drawn". It seems there might be a misconception that Fictional pornography is limited to computer generated images or things online. These new tables would look similar to the ones at Legality of child pornography, with "Real" "Fictional" and "Possession", and "Short Summary" replaced by "Fictional" "Virtual/Online" "Drawn", "Possession" and "Short Summary". Yes... I am aware this will involve the deletion of content, but it will encourage editors to create articles if the scope goes beyond routine cases. - Knowledgekid87 (talk) 13:28, 15 October 2021 (UTC)

Germany

It needs to be mentioned that the supreme court decided that pornography could also be art.

In their decisision (BVerfGE 83, 130) they stated that determining artistic value is not the job of state authorities, or any other government entity.

Despite distribution being illegal it is almost impossible to enforce due to the decision above, especially with Manga depictions which have a unique culture around them and unrealistic artstyle.

Apparently, germanys biggest anime convention has established a 18+ section where such depictions were spotted. In physical manga/figurine stores as well. PayaBones (talk) 01:09, 30 November 2021 (UTC)

Italy

Is it really illegal? I'm curious. I was checking because last time I saw it I was sure it was only for images which were too much realistic, like photos or deepfakes. So I checked and what I found is this: https://www.questionegiustizia.it/articolo/la-rilevanza-penale-dei-fumetti-pedopornografici_13-07-2017.php

Specifically there is a part that says: Ciò significa che, per rilevare sul piano penale, l'immagine pedopornografica virtuale, che può essere anche un fumetto o un cartone animato, deve avere una qualità rappresentativa "tale da far apparire come accadute o realizzabili nella realtà e quindi vere, ovvero verosimili, situazioni non reali, ossia frutto di immaginazione di attività sessuali coinvolgenti bambini/e". Diversamente, se l'immagine pedopornografica virtuale per la sua grossolanità e rozzezza non ha la forza in concreto di rappresentare un minore in carne ed ossa, essa sfuggirà all'applicazione dell'art. 600 quater 1 cp.

Which translated in English should be something like this: This means that, to be relevant on the penal matter, the pedopornographic virtual image, that can also be a comic or a cartoon, must be of such rappresentative quality that "it has to make appear as happened or able to happen and as such real, and as such plausible, situation not real, fruit of immagination of sexual activites concerning children" On the other hand, if the pedoporngraphic image, for its grossness and coarsness, it doesn't have the power to rappresent a minor in flesh and bones, it will not incur the application of the art 600 quater 1 cp.

And also this: https://www.altalex.com/documents/news/2014/10/28/dei-delitti-contro-la-persona

Specifically the part that says: Art. 600-quater.1.

Pornografia virtuale. (1) Le disposizioni di cui agli articoli 600-ter e 600-quater si applicano anche quando il materiale pornografico rappresenta immagini virtuali realizzate utilizzando immagini di minori degli anni diciotto o parti di esse, ma la pena è diminuita di un terzo. Per immagini virtuali si intendono immagini realizzate con tecniche di elaborazione grafica non associate in tutto o in parte a situazioni reali, la cui qualità di rappresentazione fa apparire come vere situazioni non reali. (1) Questo articolo è stato inserito dall’art. 4 della L. 6 febbraio 2006, n. 38

Which translated should be something like this: Article 600-quater.1.

Virtual pornography. (1) The provisions of articles 600-ter and 600-quater also apply when the pornographic material represents virtual images created using images of minors under the age of eighteen or parts thereof, but the penalty is reduced by one third. By virtual images we mean images created with graphic processing techniques not associated in whole or in part with real situations, whose representation quality makes non-real situations appear as real. (1) This article was inserted by the art. 4 of Law 6 February 2006, n. 38

So, from what I read, it seemed like the law remained the same and so I don't think Italy should be in the section which declares it illegal but either in the grey area or in the legal area, according to the fact if the prohibition of too realistic images put in the former category or not. But again, I could of course be wrong, so I'm asking also if someone else can confirm. 84.220.201.133 (talk) 22:17, 14 January 2023 (UTC)

The Enforcement and Unenforcement of such Laws

Although the prohibition of such material on paper seems to be apart of law in many places such as Australia, UK and Canada, would it often more than not be arguably seen as de facto legal considering how it often it is unenforced by law? I hear that for the most part many such material is often all across sites like rule 34 and other hentai sites. Especially considering what is considered "legal" and "depicting a character of a certain age" is often extremely vague such as when no age is specified in said fictional material. Examples would be many hentais of animes that take place in high schools. By that logic most hentai would fall under the "depicting minors pornography" law. And I don't really hear many stories of people being arrested for such material. - 11:04 AM, 6 April 2021 (UTC)

Canada and UK are very active in that regards. Someone in the UK took a plea deal and went to a psychiatry for a year to avoid prison. I would not advise to risk anything. PayaBones (talk) 01:28, 30 November 2021 (UTC)

I would respectfully submit that it doesn't matter how many people get away with it, because the law allows any person in possession of it to be indicted and prosecuted, if a law enforcement officer chooses (selective as it may be) to attack her. Such arbitrary and capricious legal action is quite unfortunate but that's another story; politically one may prefer that a man be free to see what he wishes, but that is not what the United States, etc., is doing. Al Begamut (talk) 21:25, 28 July 2023 (UTC)