Section 74 Child sexual abuse image-generators: ScotlandI1

In the Civic Government (Scotland) Act 1982, after section 52C insert—

“Child sexual abuse image-generators

52D

(1)

It is an offence for a person—

(a)

to make or adapt a thing for use for creating, or facilitating the creation of, CSA images;

(b)

to possess, supply or offer to supply a thing (a “CSA image-generator”) which is made or adapted for use for creating, or facilitating the creation of, CSA images.

(2)

It is a defence for a person charged with an offence under this section of possessing a CSA image-generator to prove that the person—

(a)

was sent the CSA image-generator without any request having been made for it (by or on behalf of the person), and

(b)

did not keep it for an unreasonable time.

(3)

It is a defence for a person charged with an offence under this section of possessing, supplying or offering to supply a CSA image-generator to prove that the person did not know, and did not have cause to suspect, that the thing possessed, supplied or offered to be supplied was a CSA image-generator.

(4)

For further defences, see section 52E.

(5)

A person who commits an offence under this section is liable—

(a)

on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both);

(b)

on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both).

(6)

In this section—

• “CSA image-generator” has the meaning given by subsection (1)(b);

• “CSA image” means an indecent photograph or pseudo-photograph of a child, within the meaning of section 52;

• “thing” includes a program, information in electronic form and a service.

Section 52D: supplementary

52E

(1)

It is a defence for a person charged with an offence under section 52D—

(a)

to prove that the person did the act which constituted the offence for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings, in any part of the world,

(b)

to prove that the person was a member of the Security Service, the Secret Intelligence Service or GCHQ (a “security body”) and did the act which constituted the offence for the purposes of the exercise of any function of the security body, or

(c)

to prove that the person—

(i)

was a member of OFCOM, was employed or engaged by OFCOM, or assisted OFCOM in the exercise of any of its online safety functions, and

(ii)

did the act which constituted the offence for the purposes of OFCOM’s exercise of any of its online safety functions.

(2)

An internet service provider does not commit an offence under section 52D by—

(a)

providing access to a communication network, or

(b)

transmitting, in a communication network, information provided by a user, if the provider does not—

(i)

initiate the transmission,

(ii)

select the recipient of the transmission, or

(iii)

select or modify the information contained in the transmission.

(3)

The references in subsection (2) to providing access to, or transmitting information in, a communication network include storing the information transmitted so far as the storage—

(a)

is automatic, intermediate and transient,

(b)

is solely for the purpose of carrying out the transmission in the network, and

(c)

is for no longer than is reasonably necessary for the transmission.

(4)

An internet service provider does not commit an offence under section 52D by storing information provided by a user for transmission in a communication network if—

(a)

the storage of the information—

(i)

is automatic, intermediate and temporary, and

(ii)

is solely for the purpose of making more efficient the onward transmission of the information to other users at their request, and

(b)

the internet service provider—

(i)

does not modify the information,

(ii)

complies with any conditions attached to having access to the information, and

(iii)

on knowing of a matter within subsection (5), promptly removes the information or disables access to it.

(5)

The matters within this subsection are that—

(a)

the information at the initial source of the transmission has been removed from the network,

(b)

access to it has been disabled, or

(c)

a court or administrative authority has ordered the removal from the network of, or the disablement of access to, the information.

(6)

An internet service provider does not commit an offence under section 52D by storing information provided by a user who is not acting under the authority or control of the provider if—

(a)

when the information was provided the provider did not know that it was, or contained, a CSA image-generator, and

(b)

on knowing that the information was, or contained, a CSA image-generator, the provider promptly removed the information or disabled access to it.

(7)

Section 52D(6) applies for the purposes of this section.

(8)

In this section—

(a)

“GCHQ” has the meaning given by section 3 of the Intelligence Services Act 1994;

(b)

“OFCOM” means the Office of Communications;

(c)

a reference to OFCOM’s “online safety functions” has the meaning given by section 235 of the Online Safety Act 2023;

(d)

“internet service provider” means a provider of—

(i)

a service that is made available by means of the internet, or

(ii)

a service that provides access to the internet;

(e)

“user”, in relation to an internet service provider, means a user of a service provided by the internet service provider.”

In Schedule 3 to the Sexual Offences Act 2003 (sexual offences for purposes of Part 2 of that Act) after paragraph 46 insert—

“46A

An offence under section 52D of that Act (child sexual abuse image-generators), if the offender is sentenced in respect of the offence to imprisonment for a term of at least 12 months.”

In the Sexual Offences (Scotland) Act 2009—