Child pornography
Centres most of its activities in the struggle against child pornography on the Internet. In 2003 and 2004, the Spanish police opened 106 investigations with hundreds of suspects involved thanks to information supplied by PROTEGELES. To this figure must be added the cases opened by police in other countries to which PROTEGELES also reports..
Spanish criminal law (book II; title VIII; chapter VII)
1.3.1 General Provisions
Child pornography is covered by Article 189 of Spanish Criminal Law: 1. A sentence of one to three years imprisonment shall be imposed on:
- a) Any person who uses under-age or incapable persons for the purposes of or in exhibitions of an indecent or pornographic nature, whether public or private, or in order to produce any type of pornographic material, or any person who finances such activity.
- b) Any person who produces, sells, distributes or exhibits, or who facilitates the production, sale, distribution or exhibition, by any means, of pornographic material in whose production under-age or incapable persons are involved, regardless of whether the material originates from another country or is of unknown origin.
- c) Any person possessing such material for any of the above-mentioned purposes shall be given the lower penalty. 2. The higher penalty shall be given if the offender belongs to an organisation or association, even temporarily, which is dedicated to such activities. 3. Any person who obliges a child or incapable person to take part in behaviour of a sexual nature which prejudices the evolution or development of their personality shall be punished by imprisonment of between six months and one year or a fine.
4. Any person who has under his or her responsibility, care, guardianship or foster care, an under-age or incapable person and, knowing of his or her situation of prostitution or corruption, does not do all that is possible to prevent the continuation of such situation or does not inform the competent authorities for the same purpose if he or she does not have the means necessary for the custody of the minor or incapable person, shall be punished by a fine.
5. The Public Prosecutor shall take the necessary action in order to remove the parental responsibility, care, guardianship or foster care, as appropriate, from any person who commits any of the offences described above.
CONCURRENT OFFENCES
It is important to underline that where there is a child pornography offence (Article 189 of Criminal law), there could be concurrent offences, as there are frequently associated cases of sexual abuse or rape.
1.3.2 Protected Rights
Article 189 of Spanish Criminal Law protects certain rights which are of particular importance to children. It is therefore essential to be aware of those rights.
The protected rights are:
- The freedom of the child.
- The child’s right to freedom from sexual abuse.
- The child’s right to privacy.
- The reputation and honour of the child.
- The child’s dignity.
Any consideration of the legal interpretation of child pornography must take into account the protection of these rights.
1.3.3 Illegal activities
Article 189 of Spanish Criminal Law defines the activities related to child pornography which are prohibited and, therefore, punishable. Said Article should always be interpreted in a restrictive manner. However, in many cases it is still difficult to determine with sufficient certainty whether a given image should be considered child pornography or not.
1.4 - Reform of Spanish Criminal Law with respect to Chapter V, Title VIII, Book II – “On offences involving the prostitution and corruption of children” – Art.187 and Art.189. Basic Law of 25 November 2003
PORNOGRAPHY
With the reform of Spanish Criminal Law, for the first time in Spain, the possession of pornographic material became an offence punishable by up to one year’s imprisonment for any person possessing pornographic material in which persons of under 18 years of age have been used (photographs, videos, real digitalised images, electronic files, etc). It also introduced the offence of the production, sale and distribution of pseudo-pornography, that is, of pornographic material in which minors have not directly been used but which uses their altered or modified image or voice (known as “morphing”). Finally, penalties were increased to up to four years’ imprisonment for the production, sale or distribution of (real) pornography in which a child of under 18 years of age has been involved or up to eight years’ imprisonment if the child is under 13.
