criminal-law canada pornography
Viewing pornography that is taken illegally
<p>Is it legal to view pornography that is taken and uploaded illegally?</p>

<p>For example is it illegal to view voyeur videos that have been uploaded to a site?</p>

<p>"Pornography" is used restrictedly to refer to child pornography: see <a href="https://bdp.parl.ca/content/lop/researchpublications/843-e.htm#analysis" rel="nofollow noreferrer">this analysis</a>: I assume the question is not about child porn. <a href="http://laws-lois.justice.gc.ca/eng/acts/C-46/page-36.html#h-58" rel="nofollow noreferrer">Section 163</a> of the criminal code outlaws production and distribution, but not consumption of obscenity. While ordinary sex films are probably not deemed to be obscene,</p>

<blockquote>
  <p>any publication a dominant characteristic of which is the undue
  exploitation of sex, or of sex and any one or more of the following
  subjects, namely, crime, horror, cruelty and violence, shall be deemed
  to be obscene.</p>
</blockquote>

<p><a href="http://laws-lois.justice.gc.ca/eng/acts/C-46/page-35.html#docCont" rel="nofollow noreferrer">Voyeurism</a> is separately defined: it covers even simple nude shots, if they are taken surreptitiously. Again, the offens(c)e is in the making, not the seeing:</p>

<blockquote>
  <p>Every one commits an offence who, knowing that a recording was
  obtained by the commission of an offence under subsection (1), prints,
  copies, publishes, distributes, circulates, sells, advertises or makes
  available the recording, or has the recording in his or her possession
  for the purpose of printing, copying, publishing, distributing,
  circulating, selling or advertising it or making it available.</p>
</blockquote>

<p>Illegal uploading could fall into three categories. First, it could be an act of distribution – in that sense, actual voyeuristic video is illegal to upload, though uploading normal sex tapes is not a crime. Second, it could be contrary to terms of service. Third, it could be copyright infringement. A person who sees such a thing can't reasonably be expected to know whether the copyright holder has given permission or whether it is an actual voyeuristic film, and the law does not hold a person responsible for knowing something that they can't reasonably know. They might know about the terms of service, but what would be relevant for them is whether the TOS prohibits <em>viewing</em> porn that is posted on the web page.</p>

<p>In <a href="https://nsw.criminallegal.com.au/crimes/child-pornography/" rel="nofollow noreferrer">NSW</a>, Australia:</p>
<blockquote>
<p>The Crimes Act makes it illegal in NSW to <strong>create, distribute, or possess</strong> “child abuse material.” That phrase includes films, pictures, and computer images that shows a child who is or appears to be under the age of 16:</p>
<ul>
<li><p>as the victim of torture, cruelty, or physical abuse,</p>
</li>
<li><p>in a sexual pose or engaged in real or apparent sexual activity, or</p>
</li>
<li><p>in the presence of another person who is in a sexual pose or engaged in real or apparent sexual activity.</p>
</li>
</ul>
<p>The law also prohibits the display of the “private parts” (the genital or anal area and female breasts) of a child, whether bare or covered by underwear.</p>
<p>The law only makes the material illegal if reasonable persons would find the material offensive, taking into account prevailing moral standards, the material’s artistic or educational merit, and the material’s general character. A photograph that appears in a medical text might therefore be acceptable while the same photograph in an entertainment magazine might be illegal.</p>
</blockquote>
<p>Viewing such material is not illegal. However, having possession of it is. Given that computer technology creates and stores images viewed online locally, having these crosses the line into possession ... probably. Having child pornography innocently or unknowingly (e.g. in a genuine belief the person is an adult) is an affirmative defence.</p>
