Is it possible to look at illegal images legally?

Question

There was a case in the UK a few years ago where Chris Langham, an actor, was arrested for looking at indecent images of minors. The actor's defense was that he was about to play a pedophile in a TV show and this was research. Apparently, the judge even stated that:

"Pedophilia is not an issue in this case" and [Langham] "is not a sexual predator".

Let us assume, for the sake of this question, that the actor's defense was indeed true and the only reason he wanted access to indecent images of minors was for research. Is it possible for someone to access and view such images, or any other illegal content, in a jurisdiction in which such access is illegal and not risk legal consequences? Consider, for example, a legitimate academic study on the prevalence and spread of child abuse in society. Or, since in the UK possession of terrorist propaganda is also illegal, a study of terrorist groups and their methods of recruitment

Since this is obviously a sensitive subject, I want to clarify that this question is emphatically not asking for any tips on accessing such content. If the question is impossible to answer without giving information that would make it easier for someone to find or view such images, then please close it!

I am simply wondering if it could be done legally if someone needed to see the images for actual research. Perhaps by contacting the police in advance? Or even viewing them under police supervision?

It's irrelevant if his "it's for research" claim was true or not - it's neither a statutory nor common law defence which it why he was convicted. — , Jul 31 '21 at 16:14
There are legal ways to look at these images, but I don’t know if they apply to the general public. As an obvious example, people directly involved in a trial for possession of child pornography have to be able to look at the evidence. Would you consider that an answer? — cpast, Jul 31 '21 at 16:26
@cpast yes, if you explain the legal framework that allows them to do so. I assume the same holds true for those investigating a possible crime. But what about say academics who are attempting to study pedophilia or terrorist pamphlets or any other illegal content. Is there no legal way for them to do so? Is it only members of law enforcement bodies who can? — terdon, Jul 31 '21 at 16:38
@RockApe OK. That was just the case that prompted my question. I wonder if he, or anyone else who somehow had a "legitimate" reason to look at illegal content could go about getting access to said content without breaking the law. I am not convinced that studying for an acting role is a good enough reason, but how about an academic study trying to trace the prevalence of pedophilia in different societies? Or anything else that could be a valid reason. Is there a way to get a dispensation? — terdon, Jul 31 '21 at 16:42
@phoog if you think so, I must have made a very bad job of explaining myself. The specific case just triggered the question. I am wondering if and how it would be possible for someone who did have a legitimate reason to access content that would otherwise be illegal. Whether the "it was for research" defense was good enough for that one case or not isn't relevant. My question is asking whether it is actually possible to do this legally under specific circumstances. — terdon, Jul 31 '21 at 18:14
RockApe's comment implies that "it's for research" isn't a "legitimate reason," which is something that should be analyzed properly in an answer. To your comment, if someone has a legitimate reason, then yes, it is possible for that person to access the images, and it doesn't much matter how. The existence of the "legitimate reason" defense means that those who can establish a legitimate reason to the court's satisfaction can't be convicted. But as the first paragraph after the quotation is currently worded, it does seem to me to be asking whether "for research" is a "legitimate reason." — phoog, Jul 31 '21 at 21:11
Is there no exception in the law for "research"? Would a psychiatrist studying sexual predators not be able able to see the images which they view? — grovkin, Aug 01 '21 at 05:20
Related: Is one liable if illegal material is found on one's own server? — sjy, Aug 05 '21 at 12:03
@sjy borderline dupe, even. Your answer there does answer my question as well. I don't know the local norms, but feel very free to suggest that as a dupe if you think it is one. — terdon, Aug 05 '21 at 12:09

score 6 · Answer 1 · answered Jul 31 '21 at 17:07

6

The relevant law in England and Wales is the Protection of Children Act 1978. Under section 1 of the Act, it’s a defense to distributing, showing, or possessing indecent images of children if you had a “legitimate reason” to distribute, show, or possess them. It’s also a defense if you had not seen the images, didn’t know they were indecent, and didn’t have any cause to suspect they were indecent.

However, the 1999 case of R v. Bowden held that downloading a digital copy of an image counts as “making” an image. This is not subject to the “legitimate reason” defense by statute (although I don’t know if it’d count as “making” if you have no reason to know the contents, like if a computer repair shop backs up a customer’s hard drive without looking at what’s on the drive). However, it is explicitly still subject to defenses in sections 1A and 1B of the Act.

1A covers spouses and partners. If you are the spouse or partner of a child between 16 and 18, then with their consent you can legally make indecent images of them (although this doesn’t apply if anyone but the two of you is in the image). You can also possess those images with their consent and give them a copy.

Section 1B covers criminal proceedings, investigations, etc., and was added after R v. Bowden. Because copying a digital image counts as “making” an image, it would generally be illegal for people to work with digital copies of indecent images even if done for a good reason. To avoid that, Parliament made an exception for making an indecent image when necessary to prevent, detect, or investigate crimes, as well as for criminal proceedings anywhere in the world. Parliament also exempted the UK’s intelligence agencies (MI5, MI6, and GCHQ) when carrying out their duties. These are specific statutory exemptions, so they can’t really be generalized to “if you have a legitimate reason.”

answered Jul 31 '21 at 17:07

cpast

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Thanks, this is pretty much what I was looking for. The only thing missing is if it is possible to apply the exemption you mentioned to academic study. Something whose aim may not be the direct prevention of a specific crime but instead to understand how such crimes are committed in general. For example as part of a legitimate academic study. And I was hoping to learn about illegal content in general, not only about minors. I believe it is also illegal to access other kinds of documents (e.g. terrorist pamphlets), can such things be studied in a legal way? – terdon Jul 31 '21 at 17:21
Actually, on reading the law you mentioned, I see it apparently allows for "legitimate" reasons, but doesn't seem to define them. Perhaps that is broad enough to cover something like an academic study? – terdon Jul 31 '21 at 17:53
@terdon That only applies to distribution and possession, not making. Under R v. Bowden, it's very hard to work with digital files without doing something that counts as "making." – cpast Jul 31 '21 at 18:47
Right, because accessing then will create a copy in your local machine. OK but say someone has a method that avoids that, and also has a legitimate reason to access illegal material. Does the law you linked to mean that it is at least theoretically possible for that person to legally access it? – terdon Jul 31 '21 at 19:13
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@cpast according to Wikipedia the court affirmed that downloading of an image amounted to making a copy rather than making of an image. This distinction seems to make the 2nd paragraph of this answer incorrect. Making a copy falls within the scope of distribution rather than within the scope of original creation. – grovkin Aug 01 '21 at 05:33
@grovkin Making a copy does not fall within the scope of distribution, it falls within the scope of creation. I don't know why you think it's distribution, but it's not -- the case was about whether it was creation under section 1(1)(a) and not distribution under 1(1)(b). – cpast Aug 01 '21 at 12:34
@cpast while we are not discussing the copyright law and I don't mean to suggest that we are, the copyright law is the reason why I think that making a copy falls within the scope of distribution rather than creation when it comes to images and other copyrightable works. Were the image not illegal, it would copyrightable. And a digital copy would have no originality to it. So the image would not even rise to the level of a derivative work. It would be entirely a copy of the original and its making would fall within the scope of distribution of a copyrighted material. – grovkin Aug 01 '21 at 18:44
@grovkin OK, but R v. Bowden was about this exact issue and held that it was "making" under section 1(1)(a). – cpast Aug 01 '21 at 18:45
@cpast did it say "making" or did you cut the phrase short because it said "making a copy"? Because if it said "making a copy" and did not explicitly state that making a copy amounted to "making", then the assertion that those are equivalent belongs to you rather than to the court decision. – grovkin Aug 01 '21 at 19:00
@cpast btw, it's entirely possible the Wikipedia's take is wrong and yours is correct. As someone who is not familiar with the decision, I'll leave the judgement on that entirely up to you. – grovkin Aug 01 '21 at 19:15
@grovkin Neither I nor Wikipedia is wrong here. You are fundamentally misunderstanding the article, which honestly could not be much clearer. The law, quoted in the article, does not forbid “making a copy.” It forbids “making,” and as the article notes, the court found that this applies to downloading. The distinction you’re trying to draw is not supported by the law, the decision, the article, or the English language. – cpast Aug 01 '21 at 19:45
@cpast I am not familiar with the decision, but I am familiar with the article. And if the decision did indeed put making of a copy in the scope of "making", then the decision's logic can be easily argued to go against the logic of the copyright laws. The contention that this is not supported by the English language is entirely without merit. – grovkin Aug 01 '21 at 20:00
Let us continue this discussion in chat. – cpast Aug 01 '21 at 22:13

score 1 · Answer 2 · answered Jul 31 '21 at 21:18

In a comment, you clarify your question thus:

I am wondering if and how it would be possible for someone who did have a legitimate reason to access content that would otherwise be illegal.

In another comment:

say someone has a method that avoids that, and also has a legitimate reason to access illegal material. Does the law you linked to mean that it is at least theoretically possible for that person to legally access it?

Yes, of course. That's what "defence" means in the text of the statute. Someone who is charged only with offending 1(b) or 1(c) cannot be convicted after establishing to the court's satisfaction that the reason behind the alleged violation is legitimate.

For example, a "method that avoids that" could be having the photographs only in printed form.

sjy · Accepted Answer · 2021-08-05T12:02:15.667

As pointed out in the comments and in cpast’s answer, it is a defence to a charge against s 1(1)(b) or (c) of the Protection of Children Act 1978 if the defendant proves that they had “a legitimate reason” for distributing, showing or possessing the material.

As to whether “research” is “a legitimate reason,” the Crown Prosecution Service’s guidance for this offence refers to the following passage from Atkins v DPP; Goodland v DPP [2000] EWHC Admin 302:

The question of what constitutes “a legitimate reason” … is a pure question of fact (for the Magistrate or jury) in each case. The central question where the defence is legitimate research will be whether the defendant is essentially a person of unhealthy interests in possession of indecent photographs in the pretence of undertaking research, or by contrast a genuine researcher with no alternative but to have this sort of unpleasant material in his possession … Courts are plainly entitled to bring a measure of scepticism to bear upon such an enquiry: they should not too readily conclude that the defence has been made out.

Atkins also clarifies that the principle in R v Bowden [1999] EWCA Crim 2270 – that downloading images amounts to “making” rather than “possessing” them, and thus the “legitimate reason” defence is not available – does not apply to unintentional downloads such as those stored in a browser cache:

But what of the other ten counts of "making", those relating to the material unknowingly stored in, and recoverable from, the caches? … In short, it is my conclusion that whilst "making" includes intentional copying (Bowden), it does not include unintentional copying.

Your first quote is pretty much exactly what I was after! I was thinking of cases where there is incontrovertible evidence that the material was indeed only for research (say as part of a legitimate academic study carried out by a university). This means my answer is "yes, it is possible that to look at illegal images legally if you can demonstrate that you have a valid reason" (but demonstrating this will not be trivial, which is exactly as it should be). Thanks! — terdon, Aug 05 '21 at 11:56

Is it possible to look at illegal images legally?

3 Answers3