In 2022, the Italian Parliament introduced a new crime under article 600-fourth paragraph 3 of the Penal Code, which punishes the mere “(intentional) access to child pornographic material online“. Previously, access to child pornography had gone unpunished, since the crime of possession (detenzione) of child pornography involved at least downloading a file-sharing program from the web or from a messaging application, even though the file was deleted afterwards and even though there was no evidence that the file had been opened. The new legislative intervention aims to fill the gap that is the fact that those who access websites with child pornography do not download any content.
However, this implies a clear anticipation of the use of criminal law. As in the case of possession, the author had no interaction with the minors portrayed or necessarily with the producers of the material, but in this case there was not even a download of the material. Therefore, the subject is punished (only) for intentionally looking at something that should not be looked at.
It should be noted that Italian jurisprudence widely applies the concept of child pornography, far beyond content in which minors engage in sexual acts. The jurisprudence includes the material in which the genitals are shown, or even only the erogenous zones of minors, such as the breasts or the buttocks. For example, it is pornography to secretly record a child in a locker room after playing sports. The legal definition of pornography does not even require that the content has been created with the purpose of inducing sexual arousal, since it is enough that it has this function “in the eyes of the viewer”. (for example, photos of nude minors normally playing on the beach).
With a decision highly criticized by the doctrine, the Italian Court of Cassation extended the concept of child pornography even to comics and h3ntai anime, the so-called “totally virtual porn”. According to the Court, the possession of child pornography is a crime of concrete danger (reato di pericolo concrete) and, in the case of comics, the danger is represented by the evocation of real situations in which “children are reduced to mere sexual objects, sexual toys with which and on which to perform acts of a sexual nature“.
With the 2022 reform, Italy also yields to the punitive demands of the EU (following Croatia, Estonia, Latvia, Luxembourg, Spain, Sweden, Poland, Portugal, Greece, the Czech Republic). The punishment of mere access to child pornography is, in fact, requested by article 5 of Directive 2011/93/EU of the European Parliament and of the Council of December 13, 2011, leaving no margin of discretion to the Member States. . However, other countries have introduced limiting corrections. Font: Verfassungsblog