Attempts to stop the child-related pornography tsunami stalled indefinitely

by | Child Abuse

More than half of the nine- to 17-year-olds in South Africa have seen sexual images on a phone or online device in the past year – 8% took naked photos or videos of themselves and two-thirds of those children shared them. Some experts report up to 15 cases of sextortion a day involving children. With earliest exposure to pornography happening at preschool, why is legislation designed to protect children gathering dust in the Department of Justice’s filing cabinets?

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It has been two and a half years since the South African Law Reform Commission published its report recommending amendments to key pieces of legislation related to children and pornography. 

The report contains its proposals to protect children from access to pornography, to manage sexting and sextortion, to criminalise all child sexual abuse material (previously known as child pornography) along with all aspects of live displays of child sexual abuse material, to clarify that sexual grooming can occur online as well as offline, and to make the policing of grooming easier. 

The report also recommends that all crimes listed in the Sexual Offences Act include criminal acts committed through the internet, webcams, mobile phones, and technology yet to be developed, and extends the obligation to report sexual abuse to online abuse. 

At the time of the report’s finalisation, South Africa was already struggling to manage a tidal wave of child exposure to pornography, of sexting and sextortion, online grooming and child sexual abuse material. But according to Dr Joan van Niekerk, who is part of the commission and sees daily the calamitous impact of delays on children, despite the extreme urgency to implement these recommendations, the Department of Justice is yet to introduce any of them to Parliament. 

And given the long lead times between legislation’s introduction and its promulgation and application, the delay is likely to extend well into the term of the seventh Parliament. 

That is, if it is introduced. At present, even that seems unlikely.

Negative online experiences

The 2022 Disrupting Harm survey reports that most children (95.3%) in South Africa have access to the internet via a mobile device, and 58% of children aged between nine and 17 access the internet every day. There was no use difference based on gender or whether the children were from urban or rural areas. The overwhelming majority (97%) use smartphones to access the internet.  

The report found that not only had 53% of those children seen sexual images online in the year before the study, but also that more than two-thirds (67%) of child participants who had seen sexual images were exposed to them on an online device.

Pornography is highly addictive, and that accidental exposure often leads to purposeful searching and can become compulsive in a short time.

South African children were found to engage in risky online behaviour and have negative online experiences, which increases their online vulnerability to exploitation and abuse. Children who participated in the survey reported that during the year preceding the survey, 40.1% of them had experienced unwanted exposure to sexual experiences and materials, while 20.4% experienced unwanted online sexual advances. Between 7% and 9% of children had been subjected to online child sexual abuse and exploitation such as having their sexual images shared without permission, being blackmailed or coerced to engage in sexual activity.

Marita Rademeyer, a clinical psychologist from Jelly Beanz, which is dedicated to helping children affected by online and in-person sexual abuse, sees these children daily. “Tannie Marita”, as she is affectionately known, works with children from primary school upwards. But her youngest client with a dependency on watching pornography was a five-year-old who had first seen pornography on her dad’s phone. 

A 2021/22 digital well-being survey targeting pupils in grades 4 to 11, conducted by Be in Touch Digital Marketing and peer reviewed by the Bureau of Market Research’s (BMR) Youth Research Unit, found that 60% of the children surveyed had first viewed pornography by age 10, 56% had first seen it at home and 34% had first seen it at a friend.  

Even more telling are stats about intentionality. Most of the children included in a 2016 BMR survey reported that they had first viewed pornography accidentally, 49.5% while they were surfing the internet for entertainment and 39% while researching content for schools. 

Rademeyer confirms how easily it can happen through a misspelt word, or Google misunderstanding the request. For example, a child may search for something innocent such as “Californian newt” (a kind of reptile). Google then corrects it to Californian nude and suddenly the child is inundated with inappropriate images. She says it’s also common for children to be exposed to pornography when their parents stream movies for them while they work, and a child accidentally clicks on a pop-up, which are plentiful.

One of the Jelly Beanz clients, Josh*, now an adult, says he was first exposed to pornography at the age of seven through a boy of 12. He describes watching pornography as “like eating sushi”. He says that, “at first you don’t like it, and then you crave it”. Even at the age of seven he remembers that it “produced big feelings”.

The impact of pornography viewing on children is disturbing. Citing important studies on children’s exposure to pornography, Rademeyer explains that pornography is highly addictive, and that accidental exposure often leads to purposeful searching and can become compulsive in a short time. She says that studies show that early introduction to pornography (ages seven to 11) results in significantly more depression and less satisfaction in adulthood than those exposed later or not at all.  

Pornography also has a negative impact on children’s thinking. Those who used pornography showed increased impulsiveness, poor decision-making, memory problems and decreased learning ability.  

According to Rademeyer, pornography becomes the main source of sex education for many children, and those who view it have more sexual partners, are less likely to use contraception, are more likely to have used alcohol or other substances in their sexual encounters, are more likely to contract sexually transmitted infections or become pregnant, and are more likely to sexually abuse siblings.

Josh confesses that he thought that girls “wanted sex all of the time”. He couldn’t understand why the boys he was watching seemed to “get it right”, but he didn’t. Another former Jelly Beanz client, Simon*, who began watching pornography at the age of 10, said that in his community, viewing pornography was a daily occurrence and that the boys spoke openly about it and about pleasuring themselves while they watched.  

98% of frontline workers interviewed for the study identified access and exposure to pornography as the greatest factor making children vulnerable to online sexual abuse and exploitation. 

He said that for his peers, kidnapping girls was considered okay and that boys would take what they wanted if girls constantly said “no”. As someone who watched gay pornography, however, he was terrified of anyone finding out. He said pornography also gave his peers negative messages about homosexuality and that it exacerbated the bullying of gay children.

Kate Farina from Be in Touch, which is dedicated to helping families navigate their kids’ online world, says that in a country with such extreme levels of gender-based violence, pornography worryingly normalises violence: “Boys are growing up believing that good sex is violent and painful, while girls are growing up believing they need to be compliant and submissive.” 

Farina says that at a private boy’s high school following a recent viewing of the Fight the New Drug documentary Brain, Heart, World, 77% of the boys surveyed agreed that pornography normalises sexual violence.

Moreover, 98% of frontline workers interviewed for the Disrupting Harm study identified access and exposure to pornography as the greatest factor making children vulnerable to online sexual abuse and exploitation.  

Jelly Beanz explained that pornography viewing among children is very difficult to police because parents are usually the last to know when their child has a problem. This is because children actively hide their tracks when using pornography and minimise their involvement in it. They also stress that caregivers cannot talk a child out of using pornography, and that punishment doesn’t change the behaviour, it sends it further underground.

It makes prevention of exposure essential. 

Legislative reform

It’s one of the chief motivators for the South African Law Reform Commission’s study on pornography and children, and its recommendations to amend legislation to protect children from exposure to pornography which is criminalised in Section 19 of the Sexual Offences Act. 

The report explains that the Films and Publications Act already compels internet service providers to register with the Film and Publications Board and to take steps to prevent their services from hosting or distributing child pornography, and to protect children from any crime committed against them (which should include exposure to pornography). Further, these injunctions to shield children from access to pornography are repeated in the South African Cellular Operators Association Code of Good Practice (SA Cellular Code) as well as the Wireless Application Service Providers’ Association Code of Conduct (Waspa Code).

But current legislation has clearly had little impact.

Drawing from international best practice, the commission therefore recommends that through amendments to the Sexual Offences Act, the government develops legislation that comprehensively criminalises the enticement of children to view or to make child sexual abuse material, along with anyone making pornography accessible to children.

The first part is applicable to all persons advertising, providing access to, distributing or enticing a child to view pornography. The amendment would criminalise all acts of exposing children to pornography and unsuitable content. 

The second part is applicable to anyone, including the manufacturer or distributor of any technology or device or an electronic communications service provider. The amendment would require a default block to be placed on all devices to prevent children being exposed to pornography. All devices (new and second-hand) would be issued with the block or must be returned to a default setting when they are sold or given to a minor. The block will prevent children accessing inappropriate content, but includes an opt-out possibility on proof that the buyer or user is 18 and older. 

It would then be a criminal offence to allow a child to engage with any device, mobile phone or technology with internet access, without ensuring that the default block is activated to prevent children being exposed to pornography or child sexual abuse material. It would also be illegal to uninstall the default block.

The recommendation further criminalises the use of misleading techniques on the internet, specifically the embedding of words or digital images into the source code of a website, an advertisement or domain name, to deceive a child into viewing or being exposed to child sexual abuse material or pornography. 

Moreover, it suggests that the Films and Publications Act be amended to provide for a clean-feed regime for material deemed unsuitable for children.

Limiting exposure

The commission is aware that legislative changes are not sufficient to protect children. It also recognised that Disrupting Harm findings confirmed the scarcity of online education for children. The study revealed that less than half (only 41.4%) of the child participants had ever received information on online safety.

The commission therefore recommended that the government “work with internet access and service providers to roll out a national awareness-raising campaign, underpinned by further research, to better inform parents, professionals and the public about what pornography is; young people’s access and exposure to pornography; and responsible safe use of the internet”.

These recommendations were workshopped with key role players in the internet, mobile phone, online safety and child protection space, and the commission recognised some practical concerns about implementation raised by these interested parties.  

In response, it proposed a three-pronged strategy for limiting children’s exposure to pornography.  

First, using legislation to include a block at the point of the end user. It acknowledged that this may not be fail-safe because, for example, many devices given to children are second-hand and enforcing the reinstatement of the block may be challenging. For this reason, its second strategy would be to persuade the major platforms to put codes in place so that mobile phones cannot link to their platforms without a pornography block when the phone is set up (again, noting that the block can be disabled if you’re an adult). Third, it recommends legislatively placing obligations on electronic communications service providers through the Independent Communication Authority of South Africa, and regulations.

The commission also presented a proposed legislative solution to children being criminally charged for sexting.  

Sexting is defined as the sending, receiving or forwarding sexually explicit messages, images or videos via an electronic device. The Disrupting Harm survey found that 84% of children felt that sending sexual content online was very risky and 68% strongly agreed that a person should not take these photos or videos or allow anyone else to do so.  

The risks of creating and sharing what children euphemistically call ‘nudes’ are significant… Of these risks, extortion, or sextortion as it is commonly known, is particularly rife. 

However, in practice, 8% of children surveyed confessed to having taken nude images or videos of themselves, and 5% said that they had allowed someone else to do so.

In addition, 8% of children surveyed said they had shared naked pictures or videos of themselves online in the past year. When asked why they did it, most children said they were in love, or flirting and having fun. Others said that they trusted the person or that they were worried that they would lose the person if they didn’t share.  

A worrying 21% said they did not think there was anything wrong with sharing.  

Equally concerning are the children who shared because they were pressured by friends, threatened or offered money or gifts in exchange for the images. 

Eight percent of children surveyed confessed to having pressured someone else to share naked videos or images. 

Globally, the Internet Watch Foundation reported that most self-generated child sexual abuse images are of 11- to 13-year-olds, but it noted a 360% increase in self-generated sexual imagery of seven- to 10-year-olds from 2020 to 2022.  

Seventy-eight percent of the 255,571 webpages it flagged during 2022 contained self-generated images.

The Sexual Offences Act and the Films and Publications Act criminalises the creation, production, procuring and possession of “child pornography” which is defined as “private sexual photographs and films” or “intimate images”.  

While there seems to be legal uncertainty about whether children may distribute consensual intimate images and private sexual photographs and films, and about children self-generating content, the Law Reform Commission document states that “legally, the primary consequence for a child who voluntarily generates sexual material of him or herself is that distributing this material or making or possessing material of another child”, even with that child’s consent, “may lead to a charge being brought against the child for any number of child pornography-related offences, including possessing or exposing another child to child pornography”. 

This could “result in a conviction for a serious criminal offence, although the child would be dealt with within the remit of the Child Justice Act 75 of 2008”.

In addition, the risks of creating and sharing what children euphemistically call “nudes” are significant. Chief among those identified by the commission are the “unintended circulation” of images, images or videos being used for “bullying, revenge or extortion”, the adverse impact on children’s “well-being, reputation and future prospects”, and complications for law enforcement.

Of these risks, extortion, or sextortion as it is commonly known, is particularly rife.  

Tackling ‘sextortion’

According to Farina, sextortion of children, classified as cyber extortion under the South African cyber laws, occurs when predators blackmail children into sending them sexual or nude pictures and videos. Targeting children as young as 10 and usually focused on those in their early teens, often boys, criminals use Snapchat, Tiktok, Instagram and Discord to befriend and then manipulate and coerce children into sending them naked photos or videos.  

Farina says that the criminal (it could be an organised syndicate or a common criminal) puts together an account on a platform being used by the child. Typically posing as a teen boy or girl, a bored housewife, modelling or sports agent, they follow the child and then start a chat on direct message (DM), before asking for the child’s WhatsApp details. If the child gives them their phone number, the criminal sends them an explicit image or video before requesting one in return.  

Once the child has sent a nude image or video, they are told that unless they pay the criminal or produce more content (the criminal will be specific about positions and props), the images will be released to their friends and family.  

Many children do not tell their parents out of embarrassment, shame or fear of disappointing them.  

The report recommended that all offences relating to child sexual abuse material and children’s exposure to pornography should be criminalised in the Sexual Offences Act and that wording around grooming be changed to include online grooming. 

Nevertheless, in mid-2023 Emma Sadleir from the Digital Law Company reported getting up to 15 calls in a day from parents whose children had been targeted and sought help. These are often the fortunate ones. Others, crippled by shame, don’t turn to a trusted adult and tragically, convinced these is no other recourse, commit suicide.

According to Farina, if sextortion occurs, the child’s family must screenshot the conversations on the social media platforms and on WhatsApp, because this counts as evidence to the police. Then, before blocking the predator, they should send this message: “I have spoken to my parents. They are reporting it to the police for investigation because you are in possession of child pornography.” 

She counsels families that when a nude is shared from a child to an adult, it is classified as child pornography, so they need to use the Crimestop number 0860 010 111 to report the matter to the police and ask for a detective from the Serial and Electronic Crime Investigation unit who investigates online child pornography-related matters.

Options to manage sextortion after it occurs are limited, so awareness and prevention are key. Farina’s top tip to stop sextortion is for children to set their account to private, and for parents to help vet followers. But she and other child protection experts emphasise that the best way to stop sextortion completely is to deter children from sharing naked images. 

Decriminalise ‘consensual sharing’

While recognising children’s right to self-expression, the Law Reform Commission viewed preventing what it terms “self-generated child sexual abuse material” as an important goal. It further sought to take into account Unicef’s position that “consensual self-generated child pornography by certain children should be decriminalised for personal use between consenting children”; the United Nations Convention on the Rights of the Child’s advisory to decriminalise “consensual sharing” of images between children; as well as expert opinion warning of the “serious but unintended consequences of these images falling into the wrong hands when distributed”. 

The commission therefore recommended decriminalising children showing a naked picture of themself to another child within the confines of a “consensual lawful relationship” provided it is their own image.

Children will, however, not be permitted to electronically send images of themselves to anyone, or forward images of any other child.  

It further recommended that once the child turns 18, there would be “no defence for the continued possession of the material”, so all naked self-images must be deleted. 

It also recommended education to help children understand the impact of taking and sharing naked pictures and videos. 

The commission noted children’s vulnerability and the need to protect them from being used for, or exploited through, child pornography (now termed child sexual abuse material). It cited statistics produced by the Internet Watch Foundation which, along with its partners, blocked at least 8.8 million attempts by UK internet users to access videos and images of children suffering sexual abuse in one month alone.  

This was confirmed by Europol which noted a significant increase in the demand for child sexual abuse material since the start of the Covid-19 pandemic. 

The WeProtect Global Alliance’s 2023 Global Threat Assessment Report revealed an 87% increase in reported child sexual abuse material cases since 2019, with more than 32 million reports globally.

The commission stressed that “internationally the need to define and criminalise this behaviour, using accurate terminology, has become increasingly pressing”.  

The report recommended that all offences relating to child sexual abuse material and children’s exposure to pornography should be criminalised in the Sexual Offences Act and that wording around grooming be changed to include online grooming. 

Along with self-generated child sexual abuse material, it highlighted content created for aesthetic or creative purposes and images created by parents, particularly in electronic format. It stressed that those creating the content should be “alerted to and educated about the consequence of and possibility of abuse of the images as a result of distributing such material”.  

Given the rise of sexual abuse and exploitation online, another crucial development is the proposed legal requirement for electronic communications service providers and financial institutions to report if their facilities are used in an offence involving child sexual abuse material, as is criminalising all aspects of the live sexual abuse displays including live streaming, attendance of the displays, viewing them, or procurement of children to participate.

The commission’s report contains months of planning, researching, drafting, workshopping and consulting with the country’s leading experts on online and in-person child sexual abuse.  

But Van Niekerk says that, incomprehensibly, there’s no plan of action to implement any of its legislative or non-legislative recommendations. 

While it gathers dust, the lives of many South African children will be defined, destroyed and even ended by exposure to pornography and child sexual abuse material, including self-generated content. As the country ends yet another 16 Days of Activism, it’s clear that even when we have the solutions for ending violence perpetrated against children, there’s no urgency to implement them. DM

* Names have been changed to protect identities.

First published in the Daily Maverick: 12.12:2023

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