Child pornography and privacy rights

Michael Yuzdepski is a first year law student at Osgoode Hall and is taking the Legal Values: Challenges in Intellectual Property course.

Child pornography is inseparable from the internet. This is because the internet offers a number of benefits to pedophiles, with the most obvious being anonymity. Therefore, in order to bring pedophiles to justice, law enforcement must be able to pierce this veil of anonymity. One way the government can help law enforcement do this is by compelling internet service providers (ISPs) to provide basic information about their subscribers, such as their name and address, to police on demand.

However, many commentators, such as Michael Geist, express concern that bringing ISPs into the “war” against child pornography will undermine privacy rights. However, in the context of child pornography, hard-line privacy advocates fail to fully appreciate the many sides of the right to privacy. If privacy is viewed in a holistic manner, it becomes clear that giving law enforcement expanded powers to tackle child pornography actually strengthens the right to privacy by protecting the privacy of the children who are exploited by those who view child pornography.

This aspect of anti-child pornography measures is often ignored in debates over privacy rights, with the focus being solely on the rights of the suspect versus the interests of law enforcement. However, the privacy rights of those appearing in child pornography have been recognized by the Supreme Court. For example, Justice L’Heureux-Dubé wrote in her concurring opinion in R. v. Sharpe, 2001 SCC 2: “in prohibiting the possession of child pornography, Parliament promulgated a law which seeks to foster and protect the equality rights of children, along with their security of the person and their privacy interests.”

This understanding of the issue should underlie the powers, such as the one suggested above, that we give law enforcement in order to unmask pedophiles. This is because giving the privacy rights of children a broad and generous interpretation is critical in the context of online child pornography for two primary reasons. The first is that children are particularly vulnerable to sexual exploitation. The second is that in the digital age the potential effects of that exploitation are virtually limitless. Every time a pedophile views child pornography, the child’s right to privacy is violated. Therefore, considering how vulnerable children are to having their right to privacy taken away through the viewing, making and dissemination of online child pornography, when push comes to shove and the rights of the child come into conflict with the rights of the pedophile, the rights of the child should prevail.

Although there are legitimate fears that measure like warrantless production orders could be used to tackle much less serious crimes, this possibility is remote because very few crimes have the characteristics of child pornography. In most cases, with child pornography it is an issue of balancing competing privacy rights rather than overriding them. In other words, it would be difficult to argue that in going after copyright violations, law enforcement was in fact strengthening the right to privacy rather than simply compromising it. However, this is the case when law enforcement pursues those that are involved with child pornography.

All the same, in the end it must be conceded that sacrifices by individual members of the public must be made in order to effectively tackle child pornography. While safeguards can accompany expanded police powers, these measures will not be fool proof and it is inevitable that police will come across information, intentionally or unintentionally, that does not pertain to investigations of child pornography.

However, what absolutists like Michael Geist fail to realize is that this is the price we pay for living in an organized society. Sometimes we must make individual sacrifices for the greater good. For example, we all accept the risk that we could accidentally be harmed by the police while they pursue a suspect or that our house could be accidentally raided by law enforcement while they search for a fugitive. This is unfortunate and we try to adopt as many measures as possible to prevent this, such as rigorously training our officers in the rules of engagement. However, in the end mistakes will be made and innocent third parties will be harmed. Nevertheless, when the ultimate objective behind the mistakes is pressing, such as protecting the rights of children, we must content ourselves with addressing many of these errors after the fact. This will still be possible if we grant law enforcement expanded powers to go after pedophiles.