Now you see it, now you don’t: digital images and the meaning of ‹possession’

Abstract

The advent of digital technology has had a profound impact on the production and distribution of child pornography. The international trade in such material is a major focus of law enforcement agencies around the world. Central to these efforts is the offence of ‹possession.’ However, concepts of possession in the criminal law evolved in the context of tangible items such as drugs, and their application to intangible data presents significant challenges. Drawing upon the laws of Australia, Canada, England and the United States, this article analyses the concept of criminal possession in a digital context. While courts and legislatures are adapting to these new challenges, in some cases it is argued that the offence of possession is being stretched too far. It is suggested that some of these difficulties may be avoided by utilising an offence of ‹accessing’ child pornography.