EARLIER THIS WEEK, a woman was prosecuted in a Dublin court for possession of child pornography over a video she was sent on Whatsapp and believed she had deleted.
The woman received a four-month suspended prison sentence in an unusual case in the Irish courts.
The woman had deleted the video from her Whatsapp messages. However, the messaging app automatically downloads images and videos to your device (unless you change the default settings), so the video remained on her phone.
So how exactly was she prosecuted?
What happened here?
On Tuesday, Omo Delpin Omorouyi was prosecuted for possession of child sex abuse images after she failed to completely delete a video featuring a man and a toddler sent to her on Whatsapp.
She did not report the video to gardaí after being sent it.
The woman received a four month suspended prison sentence in court this week.
Garnet Orange SC, who defended the woman, said that his client did not know what the video was when she began watching it. The court heard that when it became apparent that it was “something sinister” she stopped playing the video.
Omorouyi deleted the Whatsapp message containing the video and asked the sender, who she only knew by first name, “why are you sending me child pornography?”
She deleted the WhatsApp message but Garda Killian Leyden told the court that the smart phone app automatically downloads images and videos to the phone once they are viewed, so the video remained on the phone.
A month after Omorouyi believed she had deleted the video from Whatsapp, gardaí carrying out an unrelated investigation went to search a north Dublin home where she was living.
The woman was not the target of the investigation, but her phone was seized during the search and she was arrested after the video was discovered saved to her phone.
Omorouyi pleaded guilty to possession of child pornography at her home in Swords on 2 February 2018.
Why did the video save to her phone and why wasn’t it detected as child sexual abuse?
Whatsapp automatically downloads images and video to your device through the default settings.
In order to change this, users need to click into settings, data and storage usage, followed by media auto-download, and de-select the options from there.
“A practical step in dealing with this would be stop Whatsapp and [other apps] having an automated setting to download videos and images straight to your phone,” barrister Garnet Orange told TheJournal.ie.
“It was a digital file and it wasn’t the first time it had been shared… I think it’s a little bit surprising that Whatsapp aren’t able to filter out videos and images like this to prevent them from being shared.”
Whatsapp uses end-to-end encryption for its messages, photos, videos, calls and so on. This means only you and the person(s) you’re communicating with can read what is sent.
Whatsapp does not have access to these messages, unlike Facebook Messenger, for example, which has systems in place to detect and stop certain messages going through.
In an interview with Bloomberg, Facebook confirmed that it scans the links and images people send on Messenger and reads chats when they are flagged by moderators. Whatsapp does not do this.
What does the law say?
The Child Trafficking and Pornography Act 1998 states that any person who “knowingly possesses any child pornography shall be guilty of an offence”. They can be subject to a maximum sentence of five years in prison if convicted on indictment.
Child law expert Geoffrey Shannon has been pushing for amendments to the 1998 Act for a number of years, such as the inclusion of accessing child sex abuse images online.
The 1998 Act was last amended three years ago by the Criminal Law (Sexual Offences) Act 2017.
One section of the amendment outlines that a person who “knowingly obtains access to child pornography by means of information and communication technology” can be held guilty to an offence and could face up to five years in prison.
Shannon explained this amendment makes it a lot easier to criminalise those who view child sexual abuse content online, not just those who “possess” it in the eyes of the law.
Will we see more cases like this?
Orange said this appears to be the first case of its kind that has come before the Irish courts.
He told TheJournal.ie that this case is an “anomaly” and he does not believe many more like this will come forward in the courts.
“I think there was a collective shudder across the country when people saw the details of the case,” Orange said.
“I want to know if Whatsapp or others are going to change their automatic settings. People should check these settings to ensure their apps aren’t automatically downloading content they receive.”
Has this happened in other countries?
Last year, the BBC reported that a senior Met police officer was convicted of possessing a child abuse video on her phone.
The jurors in the case accepted Novlett Robyn Williams had not viewed the material, but they rejected her claims that she wasn’t aware it was on her phone.
She was ordered to carry out 200 hours of community service after her sister sent her a child abuse video.
Of the 17 people who received the child abuse video, Williams was the only one to be prosecuted. Her sister was ordered to carry out 100 hours of community service after being found guilty of distributing an indecent image of a child.
In the same case, her sister’s partner Dido Massivi received a sentence of 18 months imprisonment, which was suspended for two years, and 200 hours of community service.
Massivi had denied the two counts of distributing indecent photos, along with one count of possessing an extreme pornographic image.
What should I do if I am sent videos or photos of child sex abuse online?
“People should immediately contact gardaí. This touches on the issue of knowingly being in possession of child pornography,” Shannon told TheJournal.ie.
Gardaí recommend for people to report suspected illegal content online by using the reporting form here.
Gardaí also recommend contacting your local garda station in person or over the phone if you are sent or see illegal content, such as child sex abuse videos or images.
Contains additional court reporting from Declan Brennan
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