Is Gillespie right to suggest that there are significant obstacles in the way of creating a balanced definition of child pornography? Do that virtually insurmountable tensions exist between the desire to prohibit material that exploits children, and the desire to protect freedom of expression? Discuss, with reference to all relevant required readings.
Defining Child Pornography: Is Gillespie right to assert that there are substantial problems in the way of generating a well-rounded definition of child pornography?
Child pornography is the visual representation by photographs, films, or videos made by electronic or mechanic means of a person who is under the age of eighteen or is depicted as being under the age of eighteen engaging in explicit sexual activity (R. v. R.D, 2010).
Freedom of expression is the liberty to express one’s opinions without censorship. It is one of the fundamental freedoms under the Canadian Charter of Rights and Freedoms. This freedom is not absolute as the charter places mandate on the government to restrain the freedom when it is obligatory; such restrains on the freedom include, obscenity, defamation, and hate speech.
In the context of child pornography, courts ought to strike a balance between the freedom of expression and the need to protect children from abuse. In R.v. Katigbak the court held that while some freedom of expression values such as artistic values, legitimate purpose, medical research or other public purpose need to be protected, they should not defeat the legislative intent of criminalizing child pornography (R. v. Katigbak, 2011). The court further held that making and distributing child pornography entailed a higher risk to the public, and the risks inherent in the offense were more severe and would restrict the ambit of freedom of expression. Although the court was commended for this decision, it did not make clear what could be considered as a legitimate or artistic purpose of distributing or producing child pornography.
In sum, Gillespie is right that there are problems in the way of generating a definition of child pornography based on the difficulties of striking a balance between the right to freedom of expression and the protection from child abuse. He asserts that to come up with a proper definition of child pornography, we need to address the defining forms of child pornographic material and the purpose of such content.
R. v. R.D, BCCA 313 (Court of Appeal for British Colombia 2010).
R. v. Katigbak, SCC 48 (Supreme Court of Canada 2011).