SPECIAL REPORT: Are AI-generated child pornography images legal and distributable?

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Roger-Luc Chayer, according to CBC (Image: Gay Globe)

Sergeant Tim Brown of the Ontario Provincial Police (OPP) highlighted the escalating sophistication of predators’ methods for targeting children online. He disclosed that 348 charges had been laid against 64 individuals for child pornography during an announcement on Wednesday. Additionally, the OPP reported the seizure of 607 electronic devices and the rescue of 30 victims as part of an investigation jointly conducted last February by 27 police forces across the province.

In the case under investigation, named Project Aquatic, one of the accused individuals went as far as arranging an in-person meeting with an investigator posing online as a child. Another accused was found in possession of a staggering 21 terabytes of child pornography.

As the coordinator of the provincial strategy for preventing the exploitation of children on the Internet, Sergeant Tim Brown issued a caution to parents regarding predators who engage in online enticement and subsequently coerce children into sharing compromising photos or meeting in person. He emphasized the importance for parents to be aware of their child’s online activities, stressing the golden rule: if the child doesn’t know the person they’re interacting with 100%, it could be anyone.

Brown noted that sexual predators are adept at concealing their identities behind fake names, ages, or photos, making them even more challenging to detect.

The accused individuals hail from various parts of Ontario, with one individual originating from Alberta, spanning ages from 16 to 89 years old. Some of the accused were released on bail, although Sergeant Brown refrained from providing specific details.

Identifying human victims becomes increasingly arduous for investigators, signaling a daunting challenge.

Signy Arnason, Deputy Executive Director of the Canadian Centre for Child Protection, described the situation as a nightmare, citing the organization’s identification of a substantial increase in AI-generated child pornography over recent years. Arnason urged governments to take more decisive action to combat online sexual exploitation of children, including stricter regulations targeting tech giants. She commended the introduction of Justin Trudeau’s bill aimed at addressing online harms.

Definition of child pornography (Canadian Criminal Code (R.S.C., 1985, c. C-46)

  • 163.1(1) In this section, child pornography means
    • (a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
      • (i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or
      • (ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;
    • (b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act;
    • (c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act; or
    • (d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.
  • Marginal note:Making child pornography(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.
  • Marginal note:Distribution, etc. of child pornography(3) Every person who transmits, makes available, distributes, sells, advertises, imports, exports or possesses for the purpose of transmission, making available, distribution, sale, advertising or exportation any child pornography is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.
  • Marginal note:Possession of child pornography(4) Every person who possesses any child pornography is guilty of
    • (a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
    • (b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
  • Marginal note:Accessing child pornography(4.1) Every person who accesses any child pornography is guilty of
    • (a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
    • (b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
  • Marginal note:Interpretation(4.2) For the purposes of subsection (4.1), a person accesses child pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself.
  • Marginal note:Aggravating factor(4.3) If a person is convicted of an offence under this section, the court that imposes the sentence shall consider as an aggravating factor the fact that the person committed the offence with intent to make a profit.
  • Marginal note:Defence(5) It is not a defence to a charge under subsection (2) in respect of a visual representation that the accused believed that a person shown in the representation that is alleged to constitute child pornography was or was depicted as being eighteen years of age or more unless the accused took all reasonable steps to ascertain the age of that person and took all reasonable steps to ensure that, where the person was eighteen years of age or more, the representation did not depict that person as being under the age of eighteen years.
  • Marginal note:Defence(6) No person shall be convicted of an offence under this section if the act that is alleged to constitute the offence
    • (a) has a legitimate purpose related to the administration of justice or to science, medicine, education or art; and
    • (b) does not pose an undue risk of harm to persons under the age of eighteen years.