By the late 1990s Western states were rapidly building criminal regimes against child sexual abuse material (CSAM). At the 1996 Stockholm World Congress against Commercial Sexual Exploitation of Children, Japan was named as an international supplier of such material, and in the early internet era Japan-origin content surfaced as an international problem. Against this international pressure and a rising domestic child-protection movement, a Diet-member bill became law in 1999.

The child-pornography law is the common name for the Act on Punishment of Activities Relating to Child Prostitution and Child Pornography, and the Protection of Children (Act No. 52 of 1999), promulgated 26 May 1999 and in force 1 November 1999. It punishes the production, provision, and public display of records sexually depicting persons under 18, and criminalises child prostitution. Through amendments in 2004 and 2014, simple possession of child pornography became an offence. This article uses the English term CSAM (child sexual abuse material) alongside the statutory term, and affirms throughout that no form of child sexual abuse is condoned. It covers the background, the elements, the amendment history, and the debate.

Background

The 1989 UN Convention on the Rights of the Child (ratified by Japan in 1994), Article 34, obliges states to protect children from all forms of sexual exploitation and abuse; the 1996 Stockholm Congress was the starting point for international criminal regulation. In the 1990s Japan had no criminal law regulating child pornography and was criticised as an international supplier; Penal Code Article 175 functioned only as general obscenity regulation, with no protection taking the child as its direct interest. The 1999 Act passed both chambers unanimously as a member bill.

The elements

“Child pornography” (Article 2(3)) is defined in three types: a visual depiction of a child engaged in or subjected to sexual intercourse or a similar act; a depiction of touching of a child’s genitals (or a child touching another’s) in a manner arousing or stimulating sexual desire; and a depiction of a child wholly or partly unclothed in which a sexual body part is deliberately exposed or emphasised in a manner arousing or stimulating sexual desire. A “child” is a person under 18 (Article 2(1)). Records visually depicting these postures (photographs, electromagnetic records, other objects) are within scope.

The principal punishable acts are production (Article 7(4)–(7); up to three years’ imprisonment or a fine up to three million yen), provision and public display (up to five years or five million yen), and simple possession “for the purpose of satisfying one’s own sexual curiosity” (Article 7(1), added in 2014; up to one year or one million yen), alongside child prostitution (Article 4) and intermediation (Article 5). The “own sexual curiosity” requirement on the possession offence excludes inadvertent possession (an unintended download, for instance) from the scope.

Amendment history

The first amendment (2004) raised penalties for provision offences, addressed internet distribution, and broadened possession-for-provision and production offences. The 2014 amendment added simple possession (in force 15 July 2014, with the penalty applying from 15 July 2015 after a one-year notice period). This closed the gap by which Japan was the only G8 state not criminalising simple possession, read as moving toward international standards while drawing expression-regulation debate. During the debate, the inclusion of manga, anime, and CG was the major issue; the supplementary Article 2 fixed that expression “not infringing children’s rights” stays outside regulation, confirming the legislative intent that manga and anime are not within scope.

Scope of regulation

The Act reaches only records of real children. Manga, anime, CG, novels, and paintings depicting fictional children are outside scope, on the basis that the protected interest is “children’s rights”, the protection of real children from sexual exploitation. The third definitional type (deliberately exposed or emphasised covered postures) has been read strictly, with the “deliberately” and “arousing or stimulating” requirements limiting the reach of artistic and record photographs. From the 2000s, low-age “junior idol” products in swimsuits and underwear repeatedly raised the question of whether they meet the third type; through several prosecutions a standard weighing subject age, manner of filming, and editorial intent has been forming.

International comparison

The US PROTECT Act 2003 reaches identifiable-real-child “virtual” child pornography to a degree, but Ashcroft v. Free Speech Coalition (2002) struck down the CPPA 1996’s regulation of wholly fictional child pornography not involving real children under the First Amendment, fixing the real-child protective principle. The UK Protection of Children Act 1978 and Coroners and Justice Act 2009 reach some fictional depiction through the “prohibited image” concept, a broader reach toward fiction than Japan’s. The Optional Protocol to the Convention on the Rights of the Child (in force 2002; Japan 2005) requires criminalising production, provision, and possession.

Debate

The relation to freedom of expression recurs at each amendment, with the inclusion of fictional expression dividing artists and publishers from the child-protection movement; creators’ bodies argue that regulating fictional expression chills artistic and entertainment expression. The 2014 simple-possession provision raised concern over inadvertent retention of previously downloaded records or auto-received email attachments; the “own sexual curiosity” requirement is the stated exclusion, but operational uncertainty remains. Because internet CSAM circulates across borders, differences in national standards create regulatory gaps, addressed through Interpol-led cooperation and the international ICSE database.

See also

• Penal Code Article 175
• Waisetsu
• Freedom of expression
• Simple possession
• Child-prostitution statute
• Zoning
• Revenge porn