Reply of the Government of Lithuania to the questionnaire on child pornography on the InternetG/SO 214 (69.14)
In reply to the request of Special Rapporteur on the sale of children, child prostitution and child pornography Mr. Juan-Miguel Petit (reference: G/SO 214 (69.14)) the Government of the Republic of Lithuania presents the following information on situation in Lithuania according to the questionnaire as a contribution to the report to the 61st session of the Commission on Human Rights.
1. Information on existing legislation on child pornography on the Internet
a) Legal definition of child pornography:
Lithuania is a party to the Council of Europe Convention on Cybercrime and a definition of Child pornography provided for in this Convention is a part of Lithuania’s legal system. Paragraph 2 of Article 9 of the Convention on Cybercrime defines the term “child pornography” as “pornographic material that visually depicts:
a) a minor engaged in sexually explicit conduct;
b) a person appearing to be a minor engaged in sexually explicit conduct;
c) realistic images representing a minor engaged in sexually explicit conduct.”
Article 309 of the Criminal Code of the Republic of Lithuaniaestablishing responsibility for having in disposition objects of child pornography describes the latter as objects of a pornographic nature with the image of a child or a person appearing to be a child. According to the Lithuanian laws a child (under-aged person) is considered a person until 18 years of age.
b) legislation on producing, offering, distributing, transmitting, procuring and possessing child pornography through or in a computer system:
Lithuania has ratified the following international legal instruments related to the issue:
Council of Europe Convention on Cybercrime (ratified on 22 January 2004)
Convention on the Rights of the Child (ratified on 3 July 1995)
Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography(ratified on 10 June 2004)
International Labour Organisation Convention No 182 “Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour” (ratified 25 March 2003).
International agreements which are ratified by the Parliament are the constituent part of the legal system of the Republic of Lithuania.
The following legal acts are the main acts regulating the issues related to the child pornography on the Internet in the Republic of Lithuania:
The Law on Fundamentals of Protection of the Rights or the Child (No.I-1234 of 14 March 1996): Article 46 “The Child and Games, Films and Media” states that “Demonstration, sale, gifts and propagation and rentalsto children of toys, movies, audio and video recordings,literature, newspapers, magazines and other publications, whichdirectly promote and propagate war, cruel behaviour, violence,and pornography, or otherwise harm the spiritual and moraldevelopment of the child, shall be prohibited. Administrative orcriminal liability, established by laws, shall be applied forthese activities.”
Article 47“Protection of the Child from Sexual Exploitation” provides for that “Administrative or criminal liability, in accordance with the laws, shall be applied for encouraging or coercing a child totake part in sexual activity, using him for prostitution orinvolving him in prostitution, using him for pornography, as wellas in production or dissemination of pornographic publications,or other materials of a pornographic or erotic nature.”.
The Law on the Provision of Information to the Public (July 2, 1996, No. I-1418; new version adopted on of 28 August 2000, No VIII-1905). Article 18 of this law provides for the measures for protection of minors.Paragraph 1 of the Article 18 of the Law on the Provision of Information to the Public stipulates that organizers of public information and (or) distributors must ensure that the minors shall be protected from detrimental effects of public information to their physical, mental and moral development, in particular related to pornography and (or) violence representation which is end in itself.
The Law on the Protection of Minors against Detrimental Effect of Public Information (No IX-1067 of 10 September 2002) specifies the information that could negatively influence physical, mental and moral development of children and sets up measures of its control.
Government Resolution No.290 of 5 March 2003“On the adoption of the order of distribution of restricted public information and of control of prohibited information on the Internet”(thereinafter –Resolution No.290).This order establishes responsibility of the founder (manager) of the Internet web-site for the content of the site. The providers of information on Internet are obliged to comply with the requirements of the Law on the Provision of Information to the Public as well as other laws and regulations.All Lithuania’s legal subjects as well as legal subjects of foreign countries that are not established (do not live) in Lithuania, but concentrate all or part of their activities in distributing public information on the Internet on the territory of the Republic of Lithuania and (or) for the purpose of distributing public information make use of services of Internet providers or Internet service hosting providers registered in Lithuania, shall comply with the Resolution No.290.
According to the above mentioned Lithuania’s legal acts, there are two categories of public information that are regulated by special legal provisions:restricted public information and information not for publication.
Informationnot for publicationis information which shall not be published or distributed according to the Lithuania laws. The content of such information is determinedby the Law on the Provision of Information to the Public. Article 20 of this law prohibitsinter alia publishing, promoting or advertising pornography in the media as well as promoting and (or) advertising of sexual services and sexual perversion. It also prohibits dissemination of information which is insulting to a person and degrading personal honour and dignity. These provisions also apply to the information provided on the Internet.
TheCommission of Journalists and Publishers’ Ethics on October 3, 1996 adopted Recommendation on the Criteria for Classification of the Media Outlets. According this recommendation pornography in the media is considered to be:
a)Open demonstration of the sexual intercourse or other sexual scene (masturbation, oral sex etc.), picturing genitals if such scenes constitute the main substance of aprint publication, film or broadcasting;
b)Sexual act with a child;
c)Demonstration of perversities (masochism, sadomasochism, necrophilia, zoophilia etc.)
d)The photograph or picture in which the genitals (except breasts)are shown in a close-up for the purpose to stimulate sexual desire;
e)The audio record or text in which above (in a, b, c, d) mentioned sexual relations are reproduced using obscene language or imitating sounds of the sexual intercourse.
The media outlet could be recognised as pornographic if it complies with at least one of the above mentioned criteria.
Article 309 of the Criminal Code provides for criminal responsibility for disposal of pornographic material:
“l. Any person who produces or acquires pornographic material for the purpose of distributing it or who distributes it,shall be punished by community service or a fine or restriction of liberty, or imprisonment for a term of up to 1 year.
2. Any person who produces, purchases, keeps, displays, advertises or distributes objects of a pornographic nature with the image of a child or a person appearing to be a child shall be punished by a fine or imprisonment for a term of up to 2 years.
3. Any person who publicly displays or advertises objects of a pornographic nature, commits a misdemeanour, and shall be punished by community service or a fine or restriction of liberty or detention.
4. Legal person shall be also liable for the acts stipulated in the paragraphs 1 and 2 of this Article.”
Article 162 of the Criminal Code establishes criminal responsibility for the exploitation of a child in pornography: “1.Any person, who exploits a child in producing pornography, shall be punished with fine, or arrest, or imprisonment up to 4 years.2. Legal person shall be also liable for the act stipulated for in this article.”
The Criminal Code also provides for responsibility for other forms of sexual exploitation of a child which in certain cases might be related to the exploitation of children in pornography: rape, sexual assault, forcing into sexual relations, sexual abuse of a minor child (Articles149, 150, 151, 153).
Restrictedpublic information is information considered to be harmfulto the minors’ physical, mental and moral development. The distribution of this information is restricted in order to protect minors according to the provisions of the Law on the Protection of Minors against Detrimental Effect of Public Information, other laws and regulations, International Convention on the Rights of the Child, other international treaties which Lithuania is a party to.
According to Article 4 of the Law on the Protection of Minors against Detrimental Effect of Public Information detrimental effect on minors inter alia could have information of erotic nature: stimulation of sexual desire, demonstrating of sexual act or its imitation or other type of sexual satisfaction, genitals, and sex paraphernalia, as well asexcessive use of obscene language or gestures.
According to Article 6 of this law public information that contains elements provided for in Article 4 can not be considered restricted if it contains direct information about events or political, social, religious convictions or believes; if it has scientific or artistic significance or is necessary for research or teaching purposes; if the public interest demands to publish it; or if it’s scale and effectsare negligible.
Article 7 of this law prohibits publishing or distributing restricted information directly to minors: offering, transmitting or in other ways allowing them to acquire it for personal use. Such information could be available only in places that are inaccessible for minors and (or ) scheduled on such time that minors could not use it, or special technical means shall be provided for persons responsible for the upbringing and taking care of the children as to limit supply of the restricted information to the minors. If such technical means are not provided, programmes and broadcastings containing elements of restricted information shall be broadcasted between 23 and 6 o’clock, or shall be announced by special video or audio signs during the whole course of the transmission.
The order of publishing and distributing of restricted information as well as description of special signs and other technical means that allow limiting its supply is established by the Government Resolution No 681 of2 June 2004. This order regulates also provision of the public information on the Internet. Restricted information transmitted by the electronic media or via the Internet shall be classified and evaluated vis-à-vis criteria established by Articles 4 and 6 of the Law on the Protection of Minors against Detrimental Effect of Public Information. Public information provided in the Internet website shall be evaluated by the manager of this website. If any of above mentioned criteria could be applied, the manager of the website shall take the following measures: if the site contains restricted information it should begin with a warning on the opening page in Lithuanian and English stating that “Information provided in this website could have detrimental effects on minors”. In addition to that, depending on the content of the information additional massage in Lithuanian and in English shall specify the age group of possible users: that certain information is intended for the persons above 7, 14 or 18 years of age. Managers of the website can undertake other supplementary measures to increase protection of minors form the negative effects of the restricted information.
According to the Resolution No 290 it is prohibited to keep restricted information freely accessible in the servers operating on the territory of the Republic of Lithuania, to distribute it through e-conferences, to send by e-mail to the unlimited number of receivers or distribute via Internet in other way that makes such information freely accessible to minors.
c)Information on the age of consent to sexual activity vis-à-vis the age used in child pornography legislation
According to the provisions of Paragraph 1 Article 47 of the Law on Fundamentals of Protection of the Rights or the Child and Articles 162 and 309 of the Criminal Code of the Republic of Lithuania any involvement of a person until 18 years of age into production of pornographic materials is illegal, notwithstanding if a person concerned has given consent or not. In this case producers of the pornographic materials are liable according to the law. According to Article 2 of the Law on Fundamentals of Protection of the Rights or the Child “a child is a human being below the age of 18 years, unlessotherwise established by laws”.
d)Legislation on Internet Service Providers in relation to child pornography on the Internet and other forms of sexual exploitation of children through the Internet
Article 9 of the Resolution No 290 provides for that founders (managers) of the electronic media as well as producers and distributors of information placed on the Internet shall comply with the Law on the Provision of Information to the Public, said Resolution and other norms established by the legal acts of the Republic of Lithuania.In their activities they shall comply with the code of professional ethics in public information as well.
The Resolution No 290 recommends placing visibly in the homepage of the website besides information about the legal person possessing or managing the site the following announcement: “Please inform (special telephone number and email address at the Police Department) about violations of the order of the control of prohibited information and distribution of the restricted information in the Internet”.
The Resolution No 290 establishes responsibility for the content of the information placed in the Internet website. The founder (manager) of the website is liable for its content. The manager is liable in case the founder and the manager is not the same person. Provider of the Internethosting services is liable for the hosted information belonging to client only in two cases: 1) if he provides hosting services being aware of the factual violation of the Resolution No 290 committed by using his services or his servers; or 2) if after receiving information about prohibited information placed in his server he does not remove such information or terminate access to it without delay.
Internet providers and Internet hosting services providers shall terminate access to information placed in their servers upon the order of the court. Court has a right to temporarily suspend or terminate the activities of the producer and (or) distributor of public information if he publishes information that is not for publishing. The activities of the producer and (or) distributor of public information may be terminated by the court only in case the court (or for the electronic media - Lithuanian Radio and Television Commission) during the last 12 month has suspended its activities at least once (Article 53 of the Law on the Provision of Information to the Public).
- Information on the implementation of child pornography legislation on the Internet
a)Jurisprudence
According to the data of National Court Administration in 2002-2004 the courts of first instance have examined one criminal case related to the exploitation of a child under 18 years of age for the producing, sale or distributing of pornographic prints, images, video films, movies and other materials of pornographic nature (according Article 242 of the Criminal Code in force until 1 May 2003) and 5 criminal cases related to child pornography according Article 309 “Disposal of pornographic materials” of the new Criminal Code in force since 1 May 2003.
b)Competent law enforcement agencies
On 1 October 2001 the special Cybercrime Unit was established in Crime Investigation Chief Board of the Lithuanian Criminal Police Bureau.Cybercrime Unit is a unit of central criminal police of the state, the mission of which is to ensure the enforcement of the provisions of the Convention on Cyber-Crime, to prevent, investigate and detect crimes which are being planned and committed in cyber space – world wide web and corporative information systems - on the Intranet, seeking in this way to ensure the security of Lithuanian society and information technologies in this field. Prevention, detection and investigation of crimes related with child pornography on the Internet also lays within competences of this Unit.
Currently there are 4 officers working in the Unit, who are professionals in law, have technical competence in the field and constantly improve their skills participating in the training courses in Lithuania and abroad. The Unit is supplied with necessary technical equipment and software.
The Unit mainly carries on pre-trial investigations in the cases of cybercrime, including child pornography.
The Unit co-operates closely with the Internet service providers, as well as other institutions and organisations that provides information on the perpetrators of such crime. The Unit has it’s own homepage where anyone can provide information about criminal acts. The officers of the Unit also co-operates with their counterparts abroad in cases on international distribution of child pornography via the Internet.
According Resolution No 290, Lithuanian Criminal Police Bureau maintains a special telephone line and email address to receive information from the public about the violation of the provisions of this Resolution. Upon receiving relevant information criminal police or other competent institutions start criminal investigation and inform the Internet service providers or Internet hosting service providers about violation in order to terminate public access to restricted information.
3. Information on initiatives to prevent and combat children pornography on the Internet and other forms of sexual exploitation of children via Internet such as sex tourism and trafficking
a) Administrative and political measures (work groups, action plans etc.)
On 11 January 2000 the Government of the Republic of Lithuania adopted the Resolution No. 29 on National Programme against Commercial-Sexual Exploitation and Sexual Abuse of Children for 2000-2004. This Programme provides for educational, juridical, social, medical, administrative and information measures for achieving the goals of the programme – to create the system of preventive measures against sexual exploitation and sexual abuse of children. The Ministry of Social Security and Labour is responsible for implementation of this Programme.
On 17 January 2002 the Government of Republic of Lithuania adopted the Resolution No. 62 on Approval of the Programme for the Control and Prevention of Trafficking in People and Prostitution for 2002-2004, aimed at eliminating the root causes and conditions of prostitution, destroying networks of criminal groups and associations engaged in organisation of child abuse and commercial exploitation, developing social support systems preventing from involving minors in prostitution. The Ministry of Interior coordinates the implementation of this Programme.
The Information Society Development Committee under the Government of the Republic of Lithuania plays an active role in promoting measures to control publication of prohibited or restricted information on the Internet including the measures to prevent child pornography. In 2004 the Committee is engaged in investment project which envisages acquiring licenses for 5 effective content filtering systems, adapting them for the use in Lithuanian environment and distributing them free of charge for the Internet providers and private users. This project is to be continued in 2005 and 2006 financed by targeted programmes of the European Union. The Committee is planning already this year to introduce in its website a special web page devoted to the problems of secure Internet. Along to the distribution of filtering programmes this page will be used for education and public awareness raising programme.