Provisions against simulated child pornography were found to be unconstitutional in Ashcroft v. Free Speech Coalition [0] in 2002.
From wiki [1]:
> Referring to [New York v. Ferber, 1982: child pornography is not protected speech], the court stated that "the CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not 'intrinsically related' to the sexual abuse of children".
IANAL, but following that logic alone, the degree of realism doesn't seem to be relevant to the legal precedent insofar as photorealistic imagery would still "record no crime" nor "create victims by its production." As to whether it's dangerous for such material to exist because it would create plausible deniability for the production of actual photography while claiming it's simulated...I guess that would be a different matter.
[0]: https://en.wikipedia.org/wiki/Ashcroft_v._Free_Speech_Coalit...
[1]: https://en.wikipedia.org/wiki/Child_pornography_laws_in_the_...
The test:
* Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,
* Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
* Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Also:
Critics of obscenity law argue that defining what is obscene is paradoxical, arbitrary, and subjective.
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I think it would be hard to not find generated child porn obscene by this test, unless you have a good lawyer, at which point there is plenty of wiggle room.
There's also the issue that "contemporary community standards" are hard to determine, because what community you're talking about is hard to determine.
Where does the harm boundary lie? Is harm inflicted if an inanimate object is the only thing consuming the content? Is a generated video borne from harmful content an interest payment on your harm-capital?
Meta, but interesting I wonder whether this train of thought would hold in a court of law...
>Prohibits drawings, sculptures, and pictures of such drawings and sculptures depicting minors in actions or situations that meet the Miller test of being obscene, OR are engaged in sex acts that are deemed to meet the same obscene condition. The law does not explicitly state that images of fictional beings who appear to be under 18 engaged in sexual acts that are not deemed to be obscene are rendered illegal in and of their own condition (illustration of sex of fictional minors). Maximum sentence of 5 years for possession, 10 years for distribution.
Interestingly the same act does make all computer generated child pornography which is "virtually indistinguishable from that of a minor engaging in sexually explicit conduct" with no requirement that it be obscene, I don't think that has been tested in court yet.
Imagine we're 200 years into the future and nothing much has changed with respect to attitudes about sex, freedom of speech, technology, etc. All images available 200 years ago are still there on the internet to download, including illegal child porn. If you are downloading 200+ year old child porn, where everyone depicted is long dead, how could anyone be harmed by you viewing those images? Yet I cannot imagine anyone successfully using that defense if caught with those images.
It's not about who is being harmed by these images (if anyone), it's more about society hating pedophilia and going after it wherever possible, free speech be damned.
I think the argument is that pedophiles view existing media and it encourages them to do things to real people.
The same reason why excessively violent movies are not considered acceptable for children- it's not out of concern for the people in the movies, it's the effect it will have on the person viewing it.
And that may be part of the argument, but I think the official position of the justice department is that each time a child porn image is viewed, additional harm is inflicted upon the victim in the image.
http://www.mirror.co.uk/news/uk-news/fan-japanese-anime-make...
There is no law that sickens me more than the one that criminalises drawings. It angers me far more than even modern copyright law.
And the worst part is that nobody seems to care about it, even those who are libertarians in the UK who I've met are overcome with repulsion at the type of speech or expression, not caring for the violation of rights.
It's a horrible law backed by no evidence of harm caused, and I think it is truly truly wrong that people ignore it. I am not exaggerating when I say that the principle is a motivating factor for me to leave the UK
I just wanted to say that I agree 100%. The UK's laws on obscenity and freedom of speech in general are a terrifying mess.
You can be arrested and convicted for as little as wearing a t-shirt with an offensive slogan. [0]
How do we define offensive? Well, nobody really knows. It basically depends on the magistrate or jury you find yourself in front of.
When I discuss cases like this with people, they often say something along the lines of "but how can you defend this person... what they said was racist/homophobic/obscene/insulting to the dead etc". How many times will I have to explain, I'm not defending the person or their opinions, I'm defending the principle of freedom of speech.
Nobody is willing to stand up for a cartoonist who draws creepy pictures, or a football fan with a terrible sense of humour. But really we should all be protesting in the streets over this stuff.
How long before your t-shirt is deemed offensive? Or something you wrote? Or something you drew?
Just like with the cartoons, there is zero evidence of harm caused. Just innocent people persecuted with no justification.
[0] http://www.bbc.co.uk/news/uk-england-hereford-worcester-3674...
I've noticed that people think of speech in the same way as "you should be allowed to say that" or "you shouldn't be allowed to say this" rather than in the way of "you should be allowed to speak" or "you shouldn't be allowed to speak". This kind of "particular" reasoning leads to examining the contents of speech rather than simply the right.
A magistrate who ruled in a case about the cartoons I mentioned mentioned that "society has no need for these materials", or words to that effect. This really proves my point about taking society's use for something over the individual. Most laws usually considered to be unjust we find are related to protecting people from themselves or inadequate consideration for personal liberty.
The only question needing answered is: What is considered real?
Though that then raises the question: when happens when it can be generated so realistically that it looks indistinguishable from the real thing? Would it still be treated like cartoons? How could you prove one way or the other? Lots of questions here.