Technical progress: No criminal possession of child pornographic images when data is automatically stored

The District Court of Bocholt has cleared up with older decisions, which in Germany until recently undifferentiatedly assumed that the user is always aware of the data storage in the cache. And that determined the criminal liability for child pornography according to § 184b StGB or youth pornography according to § 184c StGB. However, the District Court of Bocholt says, such court decisions are now obsolete due to technical developments. In case of doubt, the average user doesn`t know that even when viewing images, data is quickly stored in the so-called cache.

child pornography (§ 184b StGB) and youth pornography (§ 184c StGB)

In its helpful decision, the District Court of Bocholt (decision from 23.3.2017 - 3 Ds 540 Js 100/16 - 581/16) slowed down the investigators and first of all reminded them that a punishment for the possession of youth pornographic images (§ 184c StGB) is only possible if the youthful age of the person depicted is actually known. Otherwise, the picture would have to appear so childlike that it almost comes close to the possession of child pornographic images (§ 184c StGB). One thing is quite clear: it is not possible to distinguish between a 16-year-old youth and an 18-year-old young woman on the basis of visual impression alone. The German Federal Constitutional Court has already stated earlier that it is not possible to differentiate between a 16- or 17-year-old or an 18-year-old person with sufficient reliability on the basis of physical characteristics or by analysing facial features (see BVerfG, B. v. 6.12.2008 - 2 BVR 2369,2380/08).

And then the question has not yet been answered as to whether someone really acted intentionally when storing data, which is always a prerequisite for punishability with § 184b StGB (child pornography) or § 184c StGB (youth pornography). And it is also necessary to check beforehand whether even the pssession of data is doubtful. Prior to the opening of a main proceeding, the District Court of Bocholt went to work thoroughly and got rid of the prejudice that it can be assumed that the average user is familiar with the existence of data storage in the cache and knows how this data can be deleted.

"possession" of child pornography is punishable according to §§ 184b, 184c StGB 

"Possession" is also punishable by law. In our practice we have many cases in which it is doubtful from the outset whether the defendant actually possessed the pictures, even if the photos were actually found on his computer. Section 184b StGB (German Criminal Code) requires an actual relationship of control over the images. Did the accused person  have the opportunity to make the pictures available to himself, if he did not even know that and how he could access them? For this reason, the path-description of the respective photos must always be examined more closely. Storing must be done intentionally and if the accused did not know that the images are stored in the cache, then the criminal liability under § 184b StGB (child pornography) or § 184c StGB (youth pornography) will commence at the earliest as soon as the accused person recognizes or has accepted that he possesses child pornography and nevertheless continues to possess it.

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