Is taking naked pictures of your child illegal?

The question comes up regularly weather it is illegal to take nude pictures of your children. Let us look at the whole perspective of this, in context.

Recently The National Prosecuting Authority warned that “any image of a naked child is child pornography” However, this is a very broad statement from them, so lets look at it.

From the media it was reported that when asked why is “any image of a naked child” pornography? the NPA’s Advocate Bonnie Currie-Gamwo says:

” … the reason for that is quite simple; it can be abused. What you do innocently, others take and they abuse it.”

The National Prosecuting Authority (NPA) cautioned parents against publishing naked photos of their children online as the NPA considers this to be child pornography and the NPA may well prosecute parents who don’t heed the warning. This may be problematic for both parents who have become accustomed to sharing photos of their kids growing up as well as photographers commissioned to do family shoots, in particular popular newborn baby shoots and who may have published some of the photos from these shoots in their online catalogs, with or without parents’ consent, not to mention people who lives the nudist life style.

This blanket statement of the NPA that  “any image of a naked child” is child pornography seems to be be too broad and the NPA doesn’t seem to have specified which laws it interprets so broadly. The one possibility is that the NPA was referencing the Films and Publications Act which regulates the creation, production, possession and distribution of films, games and certain publications.

The Films and Publications Act defines “child pornography” as follows:

“child pornography” includes any image, however created, or any description of a person, real or simulated, who is, or who is depicted, made to appear, look like, represented or described as being under the age of 18 years—

(i) engaged in sexual conduct;
(ii) participating in, or assisting another person to participate in, sexual conduct; or
(iii) showing or describing the body, or parts of the body, of such a person in a manner or in circumstances which, within context, amounts to sexual exploitation, or in such a manner that it is capable of being used for the purposes of sexual exploitation;

The Act states that any person who –

(a) unlawfully possesses;
(b) creates, produces or in any way contributes to, or assists in the creation or production of;
(c) imports or in any way takes steps to procure, obtain or access or in any way knowingly assists in, or facilitates the importation, procurement, obtaining or accessing of; or
(d) knowingly makes available, exports, broadcasts or in any way distributes or causes to be made available, exported, broadcast or distributed or assists in making available, exporting, broadcasting or distributing, any film, game or publication which contains depictions, descriptions or scenes of child pornography or which advocates, advertises, encourages or promotes child pornography or the sexual exploitation of children, shall be guilty of an offense.

The question that remains, though, is whether a parent publishing naked photos of his or her children “amounts to sexual exploitation, or in such a manner that it is capable of being used for the purposes of sexual exploitation”? OR should parents be publishing naked photos of their children, even if it isn’t child pornography? However, the opinion is that this have more to do with your children’s right to privacy and how you are effectively making decisions for them about how little privacy they will have.

Aside from depictions of children engaged in or participating in forms of sexual conduct, the Films and Publications Act seems to target descriptions or depictions of children’s bodies that amount to actively manipulating, coercing or abusing children, in the process taking advantage of their vulnerability, for sexual purposes. This sort of conduct is clearly a crime.

There is certainly room for interpretation based on the context however to boldly state that  “any image of a naked child” is pornography seems to be interpreting the law too broadly, especially if the possible consequences for parents sharing these sorts of photos with friends and family with innocent intentions can be so severe as to end up in a criminal court. Rather parents should seriously consider whether they should share these seemingly innocent photos of their naked or partially naked children online or keep them private.

Until this sort of issue reaches a court and is decided (possibly on an interpretation of the law or an assessment of the parents’ right to privacy as a counterweight to the NPA’s scrutiny), we are left with the NPA’s threats of criminal action and each one should decide whether sharing photos of our children is worth this risk.

Regardless of whether the NPA’s interpretation is justified, one clear principle of our law when it comes to children is that we always ask the paramount question as to what is in their best interests. Is publishing photos of your naked children in their best interests, or just in yours?

Please note, that this article is based on a law professors view and findings on the subject matter, and no where in any law is it prohibited to take naked photo’s of your child, as everything regarding this has to do with publishing such photo’s, sharing it etc.