Italy recent sentence on fictional/virtual child pornography

Art and fiction
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I wanted to talk about this because I can’t sleep at night

Lolicon used to be legal in Italy, because the law that criminalized virtual child pornography specified that the images needed to make not real situations appear real

In a 2010 case the norm was accused of being Inconstitutional but the judge said it wasn’t and rejected the appeal on the basis that a constitutional reading was possible and only criminalized realistic images, condemning the person for photoshopped images made using real minors but absolving him for manga and 3d models

Then in 2017 the court of cassation included comics in the definition with a sentence

It didn’t confirm a sentence of guilt but rather denied absolvement and the principle of realism still applied in theory, since it sent the case back to the judge to determine if the images could fall under the law’s definition

But 2 months ago they confirmed a sentence where a person got condemned both for real CSAM and illustrations and manga

This is perplexing because it means the law can be applied however a judge wants, even when the law was meant to only apply to photorealism since it’s inception

It’s a similar process to other countries where laws like this get extended to apply to lolicon, but it’s unique in that in Italy interpretation switched from one to the other

This (and a few other things) blatantly makes the norm unconstitutional, but it needs to be brought to the supreme court which needs a case and takes time

Other types of hentai manga you can buy on Amazon even in countries where lolicon is banned like UK or France, even some with highschoolers

I think the contradicting normative between EU countries and the need for a common market as well as the fact that in theory only photorealistic stuff is explicitly illegal gives the opportunity for a EU wide decriminalisation norm, but I don’t know if it’ll ever happen because EU countries are slow to change legislation

Unfortunately EU abides more to UN rules rather than free speech, but public opinion is more loli neutral and perplexed by these laws due to anime/manga getting popular earlier

We’re in a very anti-porn age, US is trying to pass laws against photorealistic stuff, and a lot of both US states and EU countries are trying to pass age verification laws

Even unconstitutional norms can be applied and it may take years for them to get taken down

In 2019 opinion was more anti loli but I think it has changed in the ast 5 years due to more access to the material: DLsite is available in multiple languages and has grown substantially in that timeframe with Loki being #1 content

Ironically I think the loli taboo creates more interest in lolis

I think we are in the new sex wars, with both stronger interest in and opposition to porn, hentai and lolis

I don’t know who’ll win but there is a debate, hopefully this leads to loli legalizations and pedophile tolerance, if nothing else on the basis of freedom of expression and tolerance of non offending criminals

I feel really uncertain: I don’t like how the world is right now and it could go in either direction, like a sort of new debate like in the 60s and 70s

Moral panic on porn and pedophiles is high but so is awareness that the law is going too far in trying to criminalize CSAM and saying pornography is a health hazard that should be restrained, not to mention the credit card thing: that’s why social media don’t want to host porn, legal framework is too harsh

If the world does go in a good direction, with the liberalisation of the porn industry, the extension of free speech/expression protection and limiting of fictional CSAM laws I don’t know how much it’ll take

Right now the legal tendency is against it, but public opinion and experts aren’t super excited about the actual laws even if made in the name of protecting children

We need a global effort, maybe we’re at a peak and it’s gonna reverse quickly in the next couple years (I want to believe that) but it could also get worse or take a decade for it to resolve

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I honestly don’t understand why the cassation court insists on giving the law that reading despite being the most problematic reading and the one that raises issues of constitutionality while also being the minority reading between jurists

They do it for purely moralistic reasons, I know, the 2017 sentence is just a bunch of moralism and really bullshit technicalities about the minors being imaginary not being relevant and comics/pictures technically being part of the definition if they “make situations that are not real appear real” which clearly means photorealism but can currently get interpreted any way a judge wants

But the realism of the images SHOULD BE relevant in the law, yet they keep ignoring it

In conclusion: no country is safe, laws keep getting pushed and harsher penalities passed and while there is pushback it’s not enough

I’m sure like this the norm is unconstitutional, but who knows how much it’ll take for it to be declared as such or changed by the parliament directly

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All of these laws just cause problems, even laws against actual CSAM often carry too heavy sentences and criminalize stuff like sexting, while also having contradictions

Yet legislators don’t address those existing problems and just keep pushing new legislation

I don’t want to live in a world with such bullshit and ambiguous laws even if they don’t affect me

I genuinely want to kill myself over this

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This is a genuinely saddening and nauseating thing to read about, but we at @prostasia thank you for coming forward regarding this.

Scientific papers are being worked on right now which should contribute to a growing body of research which finds that the basis for establishing legal justification for targeting these types of fictional drawings, stories, animations, etc. are severely lacking, due to the harm being either non-existent or circumstantially incommensurate.

Here’s just one paper. There are more on the way.

Purpose of Review

With the Internet allowing consumers easy access to fantasy and fictional sexual materials (FSM), it is becoming increasingly important to understand the context of their use among specific populations. Of particular, social, clinical, and legal interest is FSM use by people who are attracted to children and whether this may have a risk-enhancing or protective impact on their likelihood of committing a contact or non-contact sexual offence.

Recent Findings

There is a lack of data currently available in relation to the use of FSM by those with sexual attractions to children. Evidence from allied areas appears to show no meaningful associations between FSM use and sexual aggression.

The fire of hope burns brightest in those who wish for change the most.

We all know that these legal prohibitions against harmless/victimless art and expression do nothing to prevent or punish the sexual exploitation of children, they merely criminalize what they think is a series of viewpoints or beliefs that they believe are intrinsic to those ends, but in fact are not, and may even direct focus away from that.

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Thanks, I already know that lolicon causes no real harm but it’s useless if legislators and judges keep having a moralist stance instead of a freedom of speech stance

I’m only tangentially into lolicon and mainly consume other genres, and I’m not attracted to real children

The law itself doesn’t strictly criminalize it, I haven’t seen action being taken in that regard and as I said the wording of the law and issues of constitutionality make applicability uncertain: law enforcement tries to pursue real CSAM, and there is at least one case for absolution on mangas so I see persecution based on manga possession alone difficult

Several jurists criticize the article on various basis

However there was already panic in online hentai communities after the 2006 law before the 2010 sentence

Ironically the reaction has been almost universally negative, like when something similar happened in France I think. even though the news itself didn’t spread much manga and anime fans mostly panicked and criticized the decision, people were dismissive or neutral at best and so were the news outlets that reported it

But the inherent ambiguity and discretionality of judges of such an interpretation for a penal crime that could land you 1 year in jail minimum as well as the suppression of free speech it would imply is incredibly frustrating, yet the court of cassation keeps acting like a moral guardian and acting like that type of content could lead to real crime, the 2017 sentence was incredibly moralist and barely talked about a clear definition at all, it deliberately made the interpretation of a law that was already consolidated broader and ambigous

Compared to 2019 when anime and manga had a boom but also UN called for fictional cp ban I feel lolicon is somewhat more tolerated and experts are more aware of its diffusion

It’s 2024 and things have changed, I see countries trying to enact harsher and harsher content control laws since 2019 but I also see a lot more pushback against it

The pushback tends to die down quickly and not concretise but with increased talk with online platforms and legislators I think the doubts and pragmatic considerations are probably apparent to those behind the closed doors, even if they don’t talk about it publicly

2022 was peak repression, in the DSA there’s a lot of talk about freedom of expression, harmonizing EU nation state laws and guaranteeing legal certainty so I hope it’s secretly also a stealth law to decriminalise at least content that isn’t photorealistic

If nothing else to lessen the burden of increasing CSAM reports and potential burden of surveillance on imported adult goods and persecuting such cases of minor gravity

Even sexting is becoming more recognized, and at least on that the Italian courts are orienting towards decriminalisation since victim and perpetrator need to be different logically

DSA could also go the other way and impose stricter rules, I feel like there are both anti-pedophile and free speech positions right now in the high spheres compared to the more anti-porn and moralist positions of 3-4 years back

We’re very much in a period like the sex wars of the 60s/70s and we’ve seen sites that host adult content getting targeted by credit card companies so there’s a lot of general uncertainty but also new possibilities for worldwide expansion of those topic and tolerance of lolicon and pedophilia

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That’s why it’s up to scientists and researchers to continue to work within the public interest to recognize and inform the public, including policymakers and jurists, of the facts surrounding these materials and their effects, just as it has always been. Do you think all of this anti-LGBT rhetoric of 20th century just evaporated overnight?

No, it was the burgeoning consensus among sexologists and psychologists which found that such things were not harmful like their predecessors had asserted. The good work of various researchers and institutions, which affected how these matters would be framed in an educational and institutional setting which in turn informed the experts policymakers and jurists would rely on to inform policy decisions.

This matter is no different.

Moralism is a type of pervasive poison, attractive to those who seek an intuitive and simple resolution to a matter of particular import that bears complexity.

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I wonder how much time it’s gonna take, it could be anywhere from the next few years up to 10-15 years

And that’s just for tolerance, not destigmatization

I usually see a 60% rule, in that if 60% of the population shares a view that tends to reflect on the population

It was like this for gay marriage, it’s kind of like this for porn in that 60% want it to be legal (or at least not illegal) but also 60% thinks it’s bad and should be illegal to minors: hence the wave of age verification laws with all the privacy concerns they bring

People are more split on immigrants, trans rights and death penalty and it shows

Right now people are like 75-80% antipedophile, anti childlike sex dolls and anti photorealistic/AI images

Lolicon itself is pretty niche, so I’m counting more on the freedom of expression and excessive penalisation/crimethought arguments as well as fear of privacy: I think a lot of people find it disgusting (admittedly I don’t like certain lolicon either) but they also don’t think it should be illegal and think it’s overboard to criminalize fiction

I also think it’s a niche problem so there’s not much interest (which is a problem), but it has wide ranging implications for freedom of speech considering literature like Lolita or the much worse works of Marquis de Sade, while controversial, are generally legal and available as well as issues of legal certainty and applicability of laws on fictional content

Even real CSAM can be hard to define let alone fictional one, and in cases of real children there are also privacy issues/laws so even borderline content can be safely removed with little issues while with commercially available fiction it’s more problematic

Photorealistic content poses more issues since it can’t be easily distinguished by real one by its own nature, so it’s probably best to restrict distribution and keep it off major platform

But it could be distributed through controlled channels that guarantee that no real minors were involved, as its easy availability would curb demand for real CSAM and soliciting minors

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Seems to me the laws have been moving in a direction such as to rekindle Puritanism. People thinking throwing pedophiles into woodchippers to not only be a good thing, akin to burning at the stake; but also find great pleasure and humorous about it. Acting and living their lives to no where near the standards of a religious following. Heathens after all. Who’s really the sick person in all of this??

Those same people have the moral character of a chimpanzee. They’d likely be opportunistic when it comes to sex, without nearly the same thought process, love, and empathy such as we have toward our attractions.

It’s moral and religious zealousness, but more so a popularity contest to show who is the most pious to win votes and elections. Easy targets of society with which to feed the prison system which has become a private industry, all about profits.

Legislation has become a cancer anymore. Full of overreaching laws, disregarding all privacy and rights of the people, which comprises the greater part of the US Constitution, in the name of “protecting children”, which they have failed to do most miserably.

It’s been shown a dark side of those in power using government sponsored care and housing, using abandoned Walmarts and warehouses, of non-documented children to move them throughout the US for unknown purposes. Yet we know what those purposes are, sexual, when it comes to human trafficking of children.

Lolicon and fictional/virtual pornography, as well as child-like dolls, have become gateways to circumvent Constitutional rights and the 4th Amendment. Turning otherwise law abiding citizens ito criminals for a victimless hobby they use as a possible outlet for their attractions. When it comes to dolls likely more so than lolicon, you now have victimized those who’s hobby may not have anything to do with sex at all!

Nevermind victimizing those charged with breaking these surmised and assumed outcomes these laws are based upon, with paranoia. Without ANY research to back them up. When in fact the research points to the opposite conclusions. That there is no harm to anyone, no victims, they don’t inspire or encourage anyone to act on these these things.

They akin to saying violent video games encourage people to commit acts of violence. Or that certain guns encourage people to do mass shootings. It’s absolute absurdity and insanity!!
Has anyone seen any major movie in the past 40 years? They’re mostly all about action and violence.

I’ve had more than enough of all this chicanery!

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On One hand it’s true that there is more puritanism in lawmaking, but when the puritanism tries to become actual concrete laws the contradictions and extremes of the ideology as well as the unreasonableness of the laws becomes apparent and people get worried about free speech and privacy

Nobody wants mass surveillance and state censorship or incarceration that is too harsh on lesser crimes or prosecution for family photos

Magistrature itself risks becoming clogged with cases and procedures and big platforms themselves benefit from less regulation

So there is some hope, but the future is uncertain: we might enter either an age of fragmentary censorship or of liberalisation and globalization

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I’m not so sure about laws targeting “realistic” virtual porn. Mostly because I have seen a lot of AI content that looks quite realistic, but at the same time I could easily tell that it was computer generated. Would a judge be able to make that same determination? How about a 70 year old lady on the jury?
Law enforcement likes to pretend this is such an extremely difficult situation.
It’s about like charging someone for cocain possession when in reality all they had was a container of baby powder.
God forbid that law enforcement should actually have to prove that a crime has occurred, and in any other sector of criminal law, they would not be able to prosecute a crime in this fashion.

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I’m not so sure either, but if an image looks like CSAM and it can’t be asserted that it’s not real leaving it online would be problematic

I believe we need nuanced laws to deal with that

There’s also the issue of morphing/photomanipulation as well as AI models trained with child images or 3D models not made using children but whose semblance is modeled after a real child and deelfakes

All fringe but real cases, which while not of the same gravity as real CSAM still potentially harm the image of the child

This doesn’t mean criminalization of photorealistic images a priori, but a non restricted use would pose issues

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That said the current laws on virtual/fictional child pornography are extremely problematic, because they don’t define what actually is a fictional depiction of a child creating a crap ton of grey areas

In many countries where that stuff is technically illegal a lot of borderline stuff still gets published and sold on Amazon, like hentai set in highschool or with more childlike/flat chested characters

It’s also unclear if the laws are even supposed to criminalize fictional characters in the first place since most laws that would criminalize manga/comics were created to criminalize morphing and photo manipulation of real children

They are inherently ambiguous despite applying to technically serious crimes and could be interpreted in a variety of ways depending on both judges and law enforcement

They almost always have provisions for non realistic images or artistic value, which in practice is the most ambiguous shit you could think of for stuff that could either land you in jail or be completely safe depending on the context

Often they’re barely applied at all but they keep existing and create problems of legal certainty, international cooperation, over reporting, law enforcement overreach

They undermine the legitimacy of real CSAM laws, most of which are frankly outdated and need to be revised for the current global context

Laws criminalizing fictional stuff just don’t stand up to constitutional scrutiny, but they keep being misapplied and kept because nations want to be harsh on child pornography

However governments and judges have an interest to keep them in place since they wrongly believe it could lead to real CSA and harms the dignity of all children and it allows them to curb undesirable content online

Most CSAM laws are based on outdated assumptions don’t even have provisions for self-generated content or sexting and risk turning children themselves into criminals for sending that content despite being victims

The courts have to invent them because it would be absurd to criminalize such acts

The lack of legal certainty in particular harms artists and content hosting platforms, that don’t know a priori what is legal and what isn’t

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I feel like with DSA thing could either get worse or better

Increased liability means that sites will crack down on any potentially illegal content

However, with the excuse of harmonizing laws countries could stealthily eliminate these laws or at least decriminalise not photorealistic content

We need to keep an eye on the next few years, public debate and awareness is increasing

Jurists, law enforcement and tech giants are aware these laws are problematic and cause moral issues, legal issues and harm to business

However the public intellectual and legal sphere doesn’t want to be seen as soft on CSAM, has a strong anti-porn sentiment (seeing it as inherently harmful and degrading to women) and are extremely paranoid of child predators

Issues are becoming apparent, and while public opinion doesn’t support certain content they don’t necessarily think it should be illegal either

There’s more debate in the various spheres, so we need to keep an eye out for the next few years

Artists and anime/manga fans as well as porn consumers are perplexed by a lot of these laws and raise concerns, while the general public doesn’t know about them at all

Stealth reforms are a possibility, as CSAM laws have all sort of notorious problems such as lack of sexting exceptions, self-generated material and overly harsh sentences

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The really shitty part when it comes to sexting, is that even an underage girl taking a photo of herself, just having it in her possession, has now made her a producer of child porn, even if it’s just a nude picture. And these people have been prosecuted as such, destroying their future for these ultra, over-the-top, moralistic laws. They’re made to register as sex offenders. Turning them into the perpetrator and the victim, double victimizing them in the process! Surely insanity has taken quite a foothold in all of this!

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A few international treaties have addressed that and said persecution of minors should be applied only as a last resort

Judges are trying to bend the laws in that sense too

They’re much more ambivalent about virtual and fictional CSAM: they want to criminalize it and consider people who consume it like potential predators but they also don’t want to infringe on free speech, overcriminalize, create legal uncertainty or infringe on citizen rights

Reforms are needed and the relevant parts are painfully aware of that, but public opinion remains really ignorant on those matters while also having extreme anti-pedophile sentiment

There’s also a lack of political will to safeguard pornography as free speech or art and a tendency to treat it as a social evil to be contained

But it’s not 2019 anymore

The social pendulum might be swinging the other way soon, at least I hope so after the whole age verification laws debacle and after

There’s a need to safeguard free speech and prevent internet fragmentation as well as a pragmatic need to limit CSAM cases to the actual serious offenses

I want to have hope

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Public institutions want to be seen as having zero tolerance on child pornography so they end up being overly harsh, unreasonable and moralistic

If Japan took so long to criminalise possession it’s because they were being pragmatic and cautious to avoid all of this stuff that is happening in other countries right now where police has to deal with in all other countries

Right now is a good opportunity at least for the EU because with the DSA they can pass any reform as harmonizing with international standards

With sexting, ambiguous cases rising, harsh penalties, porn industry being harmed by excessive requirements when demand for porn is at an all time high, rise in demand for adult anime goods, manga and digital doujins and lack of legal clarity coupled with demands for harsher enforcement this year is gonna be the best time for reforms

At least I hope so
While the general public is more aware of the laws shortcomings and lack of foresight, has perplexities and anxieties about their application, there are big privacy concerns, is more tolerant of non offending pedophiles, etc… the general desire of legislators and institutions to appear harsh persists so they don’t want to touch the law or “make it softer”, as there is still a moralist vocal minority backed by certain academic elites