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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- I. General information
- II. Legally protected property
- III. Basic constituent elements
- IV. Reservations
- V. Comparison with Swiss law
- Bibliography
- Materials
I. General information
1 The advent of the Internet has enabled the longest, fastest and most efficient exchanges known to mankind. However, it has also provided high-performance communication tools for criminals who were previously often isolated. For example, people producing child pornography have been able to make contact with child pornographers all over the world. The exchange of ideas, fantasies and advice between paedophiles has helped to support, encourage or facilitate sexual offences against children.
2 As well as facilitating the exchange of child pornography, the virtual world has also guaranteed a degree of anonymity for perpetrators, and consequently a form of impunity. It is therefore not surprising that this type of crime has developed rapidly with the spread of the Internet.
3 Art. 9 CCC therefore responds to the concern expressed by the members of the Council of Europe at their 2nd Summit in 1997, and reflects an international trend in favor of the prohibition of child pornography, as confirmed by the recent adoption of the Optional Protocol to the United Nations Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, as well as the European Commission's recent initiative on combating the sexual exploitation of children and child pornography (COM2000/854).
4 This provision aims to strengthen protection measures for children, particularly against sexual exploitation, by modernizing criminal law to restrict more effectively the use of computer systems in the commission of sexual offences against children.
5 In the years following the adoption of the Convention on Cybercrime, child pornography and, more broadly, the sexual exploitation of children remained very important issues. This led to the drafting of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, adopted in Lanzarote on October 25, 2007. Art. 20 of this treaty is largely inspired by art. 9 CCC.
II. Legally protected property
6 Art. 9 CCC protects two different legal assets. Art. 9 § 2 let. a CCC directly protects the sexual integrity of children. As for art. 9 § 2 let. b and c CCC, they protect their sexual integrity indirectly by prohibiting any behavior which, without necessarily causing harm to the "child" represented in the material in question, could nevertheless encourage or incite children to participate in such acts. These provisions thus fall within the context of a subculture advocating child abuse.
III. Basic constituent elements
A. A child pornographic representation
1. The medium of representation
7 Art. 9 CCC - like Art. 20 of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse - refers exclusively to visual representations of child pornography. This includes all representations that can be perceived by sight, in particular photos, drawings, sketches, paintings, engravings, sculptures, videos and films. Audio recordings and texts are not covered.
8 Under the Convention on Cybercrime, repression is limited to visual representations in digital form. The medium on which they are recorded is irrelevant. It is therefore irrelevant whether they are stored on a hard disk, USB stick, DVD or even in the cloud.
2. Pornographic nature
9 The notion of pornography is not defined either in the Convention on Cybercrime or in the explanatory report. The Explanatory Report simply states that the concept must be interpreted in accordance with domestic law, which deals with the classification of representations as obscene, incompatible with public morality or otherwise having a perverse effect.
10 In Switzerland, pornography is defined as anything intended to arouse the consumer sexually, where sexuality is so detached from its human and emotional components that the person is reduced to a pure sex object to be disposed of at will. Sexual behavior is crude and overemphasized. Pornography includes the insistent and repetitive representation of acts such as fellatio, cunnilingus and masturbation. This definition seems neither licentious nor particularly chaste. On the contrary, it seems balanced and can therefore easily be adopted internationally. The cardinal elements of this definition are also to be found in art. 20 of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse - largely inspired by art. 9 CCC - which defines child pornography in paragraph 2 as any material that visually depicts a child engaged in real or simulated sexually explicit conduct, or any depiction of the sexual organs of a child for primarily sexual purposes. This definition can therefore be retained.
11 Although the text of art. 9 CCC does not expressly mention it, material of artistic, medical or scientific interest is not considered pornographic.
12 Determining what is artistic and what is not is complicated, especially in the context of an international convention concluded between states with very diverse cultures. In our opinion, artistic character must be assessed on a case-by-case basis. Generally speaking, however, it can be said that material must be qualified as artistic when the artist presents something in an original way, is intended to convey a message and is the fruit of genuine research. This is in contrast to a crude, trivial or vulgar representation of reality.
13 As for medical or scientific materials, these are necessary for training or research.
3. The notion of minor
14 Although the national laws of certain Parties to the Convention provide for a higher age of majority (e.g. Canada, Japan and the United States of America), the Parties agreed that the notion of a minor should in principle be taken to mean any person under the age of 18 (art. 9 § 3 CCC). As will be seen in section IV below, the Parties may, however, make reservations to require a lower age limit. In all cases, however, the age limit must be at least 16.
4. The notion of child pornography
15 Art. 9 § 2 CCC defines the notion of child pornography by providing a list of three types of punishable representations. This list is exhaustive.
16 The first type of depiction is that of a minor engaged in sexually explicit conduct. The term "sexually explicit conduct" refers above all to sexual relations, including genital-genital, oro-genital, ano-genital or oro-anal. To be punishable under art. 9 § 2 let. a CCC, they must involve at least one minor. On the other hand, it is irrelevant whether they take place only between minors or with one or more adults. The gender or sexual orientation of each of the participants is also irrelevant.
17 The term "sexually explicit conduct", however, is broader than just sexual relations. It also includes zoophilia committed with a minor, masturbation of a minor, sado-masochistic violence in a sexual context committed on a minor, or lascivious exhibition of a minor's genitals or pubic area.
18 In all of the above cases, it is irrelevant whether the behavior depicted is real or simulated. The perpetrator cannot therefore escape conviction simply because the sexually explicit behavior did not actually take place.
19 The second type of representation covered by art. 9 § 2 CCC concerns pornographic images showing a person who appears to be a minor engaging in sexually explicit behavior (art. 9 § 2 let. b CCC). These are images depicting people who have just come of age, but who are being passed off as minors, or who are clearly of age, but who, through their clothing, make-up or accessories, give the appearance of minors.
20 Lastly, art. 9 § 2 let. c CCC refers to realistic images depicting a minor engaged in sexually explicit behavior. This last hypothesis concerns comic strips or mangas, photomontages or even images created from scratch by computers, as can be done by artificial intelligence.
B. Punishable conduct
21 Art. 9 § 1 CCC lists five punishable acts. This list is exhaustive.
22 The first is the "production", i.e. manufacture, of a child pornography representation with a view to disseminating it by computer. The term "production" encompasses all the acts required to produce representations of child pornography. This obviously refers primarily to the fixing of images on an image carrier. However, it also includes the preparation of the location and equipment needed to produce the images, the retouching of the images once they have been fixed on an image carrier, the editing of photographs or films, or even the creation of computer-generated images. In other words, this behavior covers all forms of visual media creation or editing. In all cases, however, the material must be intended for computer distribution. The creation of digital images for one's own consumption is not punishable as production, but only as possession (art. 9 § 1 let. e CCC).
23 Art. 9 § 1 let. b CCC then punishes the offering or making available of child pornography via a computer system. The term "offer" refers to commercial conduct whereby the author informs his customers that he has one or more products available and proposes that they acquire them. The type of contract (sale, exchange, donation, etc.) is irrelevant. Making available" is a broader concept than "offering", as it does not necessarily mean that the author is taking any active steps to offer a product to his customers. In fact, it refers to any act that enables or facilitates access to a child pornography representation by computer. This includes putting child pornography online, for example by creating websites, as well as creating or compiling hyperlinks to sites containing child pornography.
24 Another punishable offence is disseminating or transmitting child pornography via a computer system. Both concepts refer to data transmission. Dissemination" is the distribution of child pornography to an indeterminate number of people who have not necessarily requested it. Transmission", on the other hand, is the sending of material to one or more specific persons who have requested it. The child pornography representation may be sent by any electronic means, including e-mail, instant messaging or peer-to-peer transfer.
25 Art. 9 let. d CCC also refers to "procuring child pornography by means of a computer system". This involves actively obtaining child pornography, for example by downloading. The data must therefore have been transferred to the author's computer system, or by the author to the computer system of a third party. There must be a transfer of possession. The data must be obtained by computer. Hand delivery or sending by post are therefore not covered by the convention.
26 Finally, the last punishable conduct is "possession of child pornography in a computer system or computer data storage medium" (art. 9 § 1 let. e CCC). The classic notion of possession presupposes both physical control over the object and a willingness to exercise this control. In the virtual world, the objective requirement of physical control over the object must, in our view, be relaxed in the sense that it is sufficient for the possessor to be freely able to access its data at any time. This is obviously the case if the data is stored on a computer system belonging to the owner, on a data storage medium such as an external hard drive or USB stick, or on the memory card of a camera. However, the author is also in possession of the data if he saves it on a remote server to which he has access, or if he saves it in the cloud.
27 For some reason, the fact of consulting child pornography directly online, without appropriating it, has not been mentioned and is therefore not punishable. The absence of any mention of this conduct in the list in art. 9 § 1 CCC seems particularly surprising. Given the stated aim of combating child pornography, the repression of consumption seems just as important as criminalizing the production of child pornography. Fortunately, this oversight has been corrected in the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse. Indeed, the explanatory report mentions that the conduct referred to in art. 20 para. 1 let. f is intended to enable prosecution of those who view images of children on child pornography sites but, by not downloading them, escape criminal prosecution.
C. Unlawfulness
28 The perpetrator must act without right. This constitutive element enables the Parties to create exceptions to criminal repression for authors acting in an interest worthy of protection, similar to artistic, medical or scientific interests.
29 This expression also makes it possible to exclude from the scope of art. 9 CCC prosecuting authorities who lawfully hold images of child pornography in the form of sequestration in the investigations they are investigating and trying.
30 The omnipresence of smartphones, even in the hands of minors, has led to a number of abuses. It is not uncommon these days for people - particularly among the younger generation - to send each other photographs of their private parts during the seduction phase. This practice poses a problem when the sender of such a photograph is a minor, as he or she produces child pornography by photographing his or her genital area, transfers it when sending it via an instant messaging system, and even possesses it if he or she keeps a copy on his or her smartphone. In this situation, the minor is paradoxically both perpetrator and victim of the offence punishable under art. 9 CCC. In the context of art. 9 § 2 let. a CCC, we believe that the Parties could provide that a minor who takes a photograph with a sexual connotation of himself, transmits it or possesses it is not acting without right. On the other hand, the recipient of a mailing who asks to receive such an image, knowing the age of the sender, is clearly acting without right.
31 With regard to Art. 9 § 2 let. b CCC, the expression "without right" could also allow a Party to provide, for example, that a person is not punishable if it is established that the individual depicted is not "a minor" within the meaning of this provision.
D. Intention
32 The offence must be intentional. Intention must relate to all the objective elements of the offence. The perpetrator must therefore have the knowledge and intent to produce, offer, make available, disseminate, transmit, procure or provide to a third party, or to possess child pornography.
33 Parties may, however, adopt a more specific standard, in which case the latter would apply. Liability could, for example, be imposed if there is "knowledge and control" of the information transmitted or stored. It is not enough, for example, for a service provider to act as an intermediary for the transmission of this representation, via a website or chat room, among other means, in the absence of the requisite intent. Furthermore, a service provider is not obliged to monitor content to avoid criminal liability.
IV. Reservations
34 Art. 9 § 3 and 4 CCC allow Parties to restrict punishability in three different ways, namely in relation to the age of minors, punishable conduct and the objects of the performance.
A. With regard to the age of minors depicted
35 In the process of drafting the Convention, the Parties agreed that it was important to set the age of majority in a uniform manner. They therefore decided that the term "minor" should refer to any person under the age of 18. This limit was set in the light of the definition of "child" given in article 1 of the United Nations Convention on the Rights of the Child. It should be stressed, however, that this age refers to the exploitation of children as sexual objects. It must therefore be distinguished from the age of consent to sexual relations.
36 Given that some States have set a lower age limit in their national legislation concerning child pornography, the last sentence of paragraph 3 allows Parties to set a different age limit, which in any case must not be lower than 16.
37 The only State to have made use of this possibility is Switzerland. It has set the age limit at 16, in line with the wording of the former article 197, paragraphs 3 and 3bis of the Swiss Criminal Code. However, on June 16, 2010, Switzerland signed the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse. Article 20 of this convention punishes offences relating to child pornography. The notion of "child" mentioned therein is defined in art. 3 let. a as any person under the age of 18. As no reservation could be made with regard to the age limit, Art. 197 PC had to be adapted. The new wording of this provision came into force on July 1, 2014. It now corresponds to the general definition contained in art. 9 § 3 CCC. The reservation made by Switzerland at the time of ratification of the convention is therefore no longer relevant.
B. Punishable conduct
38 The Convention also authorizes Parties to restrict criminal prosecution by refusing to prosecute the procurement or provision to a third party of child pornography images and/or the possession thereof.
39 At the time of ratifying the convention, Ukraine, Japan and Sri Lanka made use of this possibility not to prosecute obtaining and possessing child pornography. In 2014, Japan amended its legislation and penalized possession of child pornography, as well as procuring it for others. Obtaining it for oneself, however, is still not punishable.
40 Israel specified that it refused to prosecute the obtaining of child pornography.
41 Argentina stated that possession of child pornography was not punishable under its national law.
42 Other States have expressed reservations regarding the punishability of obtaining or possessing child pornography under certain specific conditions.
43 Denmark, for example, has declared that it will not punish the possession of pornographic images involving children aged at least 15, if the minor concerned has consented to such possession.
44 At the time of ratification of the Convention, Montenegro specified that obtaining and possessing child pornography was not punishable when the person appearing in such material was at least fourteen years old and had given his or her consent. This exception has since been abolished.
C. Objects of representation
45 Finally, the Convention allows Parties to limit criminal prosecution by refusing to consider as unlawful images depicting a person who appears to be a minor engaged in sexually explicit conduct and/or realistic images depicting a minor engaged in sexually explicit conduct.
46 The Principality of Andorra, Great Britain, Argentina, Chile, the United States of America, Japan, Peru and Sri Lanka have declared that they will not prosecute the representations mentioned in art. 9 § 2 let. b and c CCC. At the time of ratification of the Convention, Iceland had entered a reservation to the same effect. This reservation no longer applies, however, as the Act of June 25, 2012 introduced a new Art. 210a into the Icelandic Penal Code, which also punishes the representations referred to in Art. 9 § 2 let. b and c CCC.
47 Denmark, Hungary, Montenegro, Switzerland and Israel have indicated that they will refrain from punishing visual depictions of a person who appears to be a minor engaging in sexually explicit behavior (art. 9 § 2 let. b). France entered a similar reservation, stating that it would not prosecute images depicting a person who is of age at the time the image is taken, but who appears to be a minor and is engaged in sexually explicit behavior.
V. Comparison with Swiss law
48 The conduct and the various representations punishable under the Convention find their equivalent in Swiss law in art. 197 paras. 4 and 5 of the Swiss Criminal Code. Swiss law fully complies with art. 9 CCC.
Bibliography
Corboz Bernard, Les infractions en droit suisse, vol. I, 3e éd., Berne 2010
Trechsel Stefan/Crameri Dean, in : Trechsel Stefan/Pieth Mark (éditeurs), Schweizerisches Strafgesetzbuch, Praxiskommentar, 4. éd., Zurich 2021
Isenring Bernhard/Kessler Martin A., in : Niggli Marcel Alexander/Wiprächtiger Hans (éditeurs), Basler Kommentar, Strafrecht II, 4. éd., Bâle 2018
Materials
Conseil de l’Europe, Explanatory Report to the Convention on Cybercrime, Budapest 23.11.2001, disponible à https://rm.coe.int/16800cce5b, visité le 21.1.2024 (cité : Rapport explicatif de la Convention sur la cybercriminalité)
Conseil de l’Europe, Explanatory Report to the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, Lanzarote 25.10.2007, disponible à https://rm.coe.int/16800d3832, visité le 21.1.2024 (cité : Rapport explicatif de la Convention du Conseil de l'Europe sur la protection des enfants contre l'exploitation et les abus sexuels)