On the first note, it should be said that Internet has increased how readily available

pornography is to children. The ability of children to view pornographic magazines, adult

films and movies can be guarded making it difficult for children to obtain illicit materials.
As many parents are less computer literate than their children, it is often difficult for them
to stop pornography from being downloaded using the Internet by their children. Further,
freely available pornographic publications in open areas such as newsagents are
controlled through legislation and are only allowed to contain “soft” pornography.

The Electronic Transactions Act under section 2 (2011)1 (herein abbreviated as ETA
2011) defines an “intermediary” as “a person who, on behalf of another person, whether
as agent or not, sends, receives or stores a particular data message or provides other
services with respect to that data message.”On the other hand, it describes a service
provider as “any public or private entity that provides to the users of its service the ability
to communicate by means of a computer system”, and “any other entity that processes or
stores computer data on behalf of such communication service or users of such service”.

However Section 42 of the same Act provides a framework to among others, enable and
facilitate electronic communication and transactions; promote technology neutrality in
applying legislation to electronic communications and transactions; and provide legal
certainty and public confidence in the use of electronic communications and transactions.
Section 29 of the Electronic Transactions Act 3 delineates the liability of service
providers. It states that a service provider shall not be subject to civil or criminal liability
in respect of third-party material which is in the form of electronic records to which he or
she merely provides access. This is provided that the intermediary is not directly involved
in the making, publication, dissemination or distribution of the material or a statement
made in the material; or the infringement of any rights subsisting in or in relation to the
material.

1
Electronic transactions Act (2011) (ETA 2011)
2
ETA 2011
3
ETA 2011
The Act, however, states that the above section does not affect the obligations of a
service provider under a licensing or regulatory framework established by the law,
or any obligations imposed by law or a court to remove, block or deny access to any
material. In section 29, providing access in relation to third-party material, is defined as
“providing the necessary technical means by which third-party material may be accessed
and includes the automatic and temporary storage of the third-party material for the
purpose of providing access.” The Act defines a third party as a "subscriber to a service
provided by the service provider or any other user of the service provider’s services or a
user of information systems."4

On the controversial hand, The Act further in Section 305 states that service providers are
not liable for infringement for referring or linking to a “data message or infringing
activity” with the exceptions that if ,the service provider:

• does not have actual knowledge that the data message or an activity relating to the data
message is infringing the rights of the user,

• is not aware of the facts or circumstances from which the infringing activity or the
infringing nature of the data message is apparent,

• does not receive a financial benefit directly attributable to the infringing activity; or

• removes or disables access to the reference or link to the data message or activity within
a reasonable time after being informed that the data message or the activity relating to the
data message infringes the rights of the user.

Persons with complaints about a data message or related activity are required to notify the
service provider or his or her designated agent in writing giving details of the right
allegedly infringed and remedial action required to be taken by the service provider in
respect of the complaint. However, this legislation is silent on what happens in case the

4
Supra note
5
ETA 2011
service provider does not comply, or the appeal mechanisms the party accused of
infringement may take. While it’s the obligation of the service provider to block any
inappropriate information posted, it should be noted that Section 32 of the Electronic
Transactions Act6 does not require service providers to monitor stored or transmitted
data nor “actively seek for facts or circumstances indicating an unlawful activity.”

Child pornography can be defined as any visual depiction of sexually explicit conduct
involving a minor. Article 34 of the 1995 constitution of the Republic of Uganda 7
provides for the rights of children that is to say; the right to know and to be cared for by
their parents, the right to basic education provided for by the government, protection
from social and economic exploitation, safe and lawful custody for detention of child
offenders and that the law should accord special protection to orphans and other
vulnerable children. This imposes an implied duty to the parents and custodians of the
children to protect them even from any form of immorality.

Section 2 of the Children Act8 defines a child to be a person below the age of eighteen
years. The Act creates an obligation on the part of any person having custody of the child
to protect him/her from discrimination, violence, abuse and neglect. Therefore this
section creates an implied duty on a parent or guardian to protect a child from sexual
abuse and exploitation which could be as a result of online or offline grooming. The Act
further creates a duty for every Local Government Council from the village to the district
level to safeguard and promote the welfare of the children within its areas.

Section 8A of the Children (Amendment) Act prohibits sexual exploitation as follows:

(1) A person shall not engage a child in any work or trade that exposes the child to
activities of sexual nature whether paid for or not.

6
Electronic transactions Act 2011
7
1995 constitution of the republic of Uganda
8
Children’s Act
(2) For avoidance of doubt, it shall be unlawful for any person to use Inducement or
coercion in the encouragement of a child to engage in any sexual activity;

(b) Children in prostitution or other unlawful sexual practices; and

(c) Children in pornographic performances or materials A person who contravenes this

section commits an offence and is liable, on conviction to a fine not exceeding one
hundred currency points or to a term of imprisonment not exceeding five years.

Section 23 of the Computer Misuse act9 provides for the offence of child pornography
through the medium of a computer. It provides for the possession and distribution of
pornographic material that depicts children in sexually suggestive or explicit conduct and
further makes it an offence for a person to make available pornographic materials to a
child. The penalty is a fine not exceeding three hundred and sixty currency points or
imprisonment not exceeding fifteen years or both. The person who makes available any
pornographic material to a child, in this case would be held liable. However we should
note that different jurisdictions have got different laws regarding intermediary liability in
this case. For instance some apportion complete liability on the intermediary for example
china and south korea, whil others it’s based on self regulation approach, then lastly
others limit liability of the intermediary for example Uganda.

The Anti pornography Act generally defines pornography as representation through

publication, exhibition, cinematography, indecent show or information technology of real
or simulated explicit sexual activities or any representation of sexual parts of a person
primarily for sexual excitement. 10 It specifically prohibits child pornography under
section 14. This is defined as pornography depicting images of children. The offence is
punishable by a fine of seven hundred fifty currency points or a sentence of fifteen years
or both. The above provisions of the mentioned laws of Uganda provide generally for
pornography involving children but do not specifically criminalize conduct that amounts

9
Computer misuse Act
10
Section 2 anti pornography Act
to grooming children for sexual abuse. There is therefore need to explore the possibility
of developing a specific legislation criminalizing the offences of sexual grooming for
children for child abuse and child sexual exploitation among others to cater for issues of
reporting, Investigation, prosecution of child groomers and regulation internet use by
children and specific penal provisions for the offender.

It should be said that, with the increasing instances of transmission of child pornography
over internet, the liability of the host of service providers who facilitates the transmission
of the content has become a contentious issue. Thus with varying legal regimes,
jurisdictional issues and standards of obscenity applied as wells a varying degrees of care
to be exercised, this area has turned into a legal quagmire. However it should be noted
that, intermediary liability does not address the question of preventing transmission of
child pornography as actual culprits remain beyond the reach of law. The scheme of
intermediary liability only acts as a disincentive to the intermediary to innovate and
hinders growth of internet services.11

Some scholars have argued that it might be quite a task to burden the intermediary for
being a publisher, who does not possess any editorial control of the content being
uploaded. In relation to the requirement of pre-filtering content by intermediaries, apart
from technical challenges viz https websites with encrypted contents are used to transmit
the pornographic content which makes filtering genuine content and degrading the
performance of systems. However, the intermediary may be strictly liable for intentional
failure of adopting data retention and preservation standards post such standards are
legislated by the government. In the pirate bay case, it was held that, as owners of the
website made it clear through their message board that their intention was to distribute
copyright infringing material they were to be held liable.

11
Intermediary liability and child pornography by Arun B Mattamana and Anchayil Anjali
In the case of R vs. Prince 2018 BCSC 98712 jesse Aaron prince was found guilty of
possessing and for the purpose of distributing or making available child pornography. In
this case, Sgt. Parisiens online personality engaged in an online chat with the individual
who had an online identity of STONERGY, sgt. Parisiens engaged prince into a
conversation where he was given a password to his folders where his pictures and videos
he posted would be accessed. Having been found out, he was convicted and found guilty
of distributing child pornography pictures and videos as an intermediary and misusing
internet.

Furthermore in another case of R vs Downing 2018 ABPC 257 13 where the police
received information that child pornography had been uploaded from an IP address
associated with MR. Downing’s address, the image which depicted a female child
between the age of 8-12 years lying down with no pants on and the shirt rolled up over
her chest. The focus of the image was on the genital and anal region which was exposed.
She had no pubic hair or breast. A search warrant was executed and a number f devices
were seized which contained images and videos of child pornography as well as chats
discussing child pornography and trading of images and videos. Mr downing was found
guilty and convicted or distributing child pornography. In these two above cases we see
the liability imputed on the originators of the pornographic material however the websites
are not held liable for not blocking such uploads. In other words as already stated above,
the operators of search engines are not supposed to be put to burden when the originator
of the pornography can easily be identified.

The reason to why the service providers have not been held liable, its because of lack of
knowledge of the updated stuff on their search engines. However it should be said that if
the service providers are aware of the pornographic material uploads, liability would be
imputed on them too. In the case of R. vs. Rodgers 2018 ABQB 87114, it was held that
the service provider of the pornography of child was not to be liable even though the
12
2018 BCSC
13
2018 ABPC
1414
2018 ABQB
accused was guilty of accessing it from the service provider’s website. More so in this
case, mr Rodgers had been accessing and collecting child pornography for close to
decade and still he was sharing it and making it available to other people over edonkey
peer-to-peer file sharing network. In other words it was clear that the accused was
willing to share the photos and the videos of pornography which was evidenced by the
detective brooks acquiring videos among other materials.

The approach of the US has been pro-internet service providers (ISPs ) as courts
and the legislators have largely concluded that if intermediaries were to be held liable
every time objectionable content has been posted online, the threat of liability and efforts
at clearance could weaken the Internet. There has also been an increasing tendency
against imposing criminal prohibitions against ISPs as even though the state had an
interest in preventing child pornography, there were better options such as filtering
systems or child friendly software. In the SABAM case 15 it was held that as per the
Belgian E-Commerce Act, the ISPs are not liable to monitor the content that is uploaded
on their sites, however, the obligation lies on the ISP to develop technology to filter out
the content that is uploaded and check it. The court also rejected the argument that
the ‘mere conduit’ clause of the Directive is violated when filtering technology is
applied as modification of the content takes place and brings liability upon the ISPs. They
held that automatic filtering is just a technical requirement and hence does not violate the
clause.

It should be noted that some jurisdictions have limited internet intermediaries. For
instance The German authorities were the first to regulate the internet intermediaries
in the European Union. Under the German Information & Communication
Services Act of 199716, arose the German Teleservices Act , the ISPs were
obligated to filter out content. However, the case was filed only if it was proved that the
internet intermediary got notification of the same and failed to take any action towards it.

15
2007
16
1997
In the case of Rolex v. Ebay17, it was held by the court that the liability safeguard was
only available to civil and criminal liability and not to injunctive claims, and parties can
file injunctive suits for the violation of trademark rights. The authorities also
introduced CompuServe which allowed users to independently prevent access to
undesirable sites. Though the courts have been penalizing intermediaries for
dissemination of illegal pornographic content, the country has been thinking of freeing
the ISPs from liability while at the same time introducing a task force to check and
regulate the content of the sites and its access in the country. The state has developed an
internet site which analyses the content of computers suspected of containing
pornographic content. Though this site has been developed, to exempt Access providers
from any sort of liability for damages, it should be said that they have a duty to block
illegal content if they gain knowledge about it. Host providers on the other hand are liable
if they had knowledge of the illegal content and they are technically able to block the
content.

More so in The Pirate Bay case18 that convicted the owners of the torrent site Pirate Bay
established a certain precedent in intermediary liability in Sweden which can be extended
to the field of liability for child pornography as well. In this case it was argued that the
copyright infringing material was held to be owned by other people and the site only
provided links to download the torrents. However, it was held that as the owners of the
website made it clear through their message board that their intention was to
distribute copyright infringing material they were to be held liable. This can be
extended to child pornography in sites and seen if the intention of the website owners or
the ISP was dissemination of such kind of materials even if they only provided the links
to other sites containing materials analogous to these. Fixing of liability would be
determined on the basis of this.

17
1999
18
http//www.pirate bay.com
In other words, Internet intermediaries should however also be made responsible to keep
track of the users and IP addresses that use the site. This would allow the authorities who
are searching the sources of paedophilic content to find and track them. If internet
intermediaries are made liable, they would remove the content before it is even published
and this would not prevent paedophiles and child pornographers from carrying out their
activities as they would shift to another medium. In order to protect children against
pornography, authorities have to find and curb the sources of child pornography and
proper training and awareness have to be given to the ISP to have proper codes of
conduct and also cooperation with the authorities. to note is that, Internet intermediaries
are an essential component for the normal functioning of the internet and its
various subsidiary services associated with it. However with the widespread
coverage and ease of use, internet intermediaries have also became a platform for
various anti-social elements to peddle their trade, especially the heinous crime of child
pornography19.

19
Intermediary liability and child pornography
BIBLIOGRAPHY

Statutes

1995 constitution of the republic of Uganda

Children’s Act

Anti pornography Act

The Electronic Transactions Act

Computer misuse Act

German Information & Communication Services Act of 1997

cases

R vs. Prince 2018 BCSC 987

R vs Downing 2018 ABPC 257

Rolex vs ebay 1999

Sabam case 2007

R. vs. Rodgers 2018 ABQB 871

Pirates bay case, http//www.pirate bay.com

Articles
Intermediary liability and child pornography, http//www.law.com

Intermediary liability and child pornography by Arun B Mattamana and Anchayil Anjali
 NKUMBA UNIVERSITY

SCHOOL OF LAW

CYBER LAW COURSE WORK

INDEX NUMBER: 2015/AUG/LLB/B21007/DAY

LECTURER: COUNSEL NABALENDE WITNESS