Criminalization of Virtual Child Pornography in Hungary and the Netherlands
A Comparative Analysis
Laura Kata Szegi is a Hungarian student enrolled in the International and Transnational Criminal Law LL.M. program. She is most interested in the interaction of criminal law and technology, especially when moral dilemmas arise from it.
Laura Kata Szegi
Subject: Comparative Criminal Law and Procedure
In recent years technological advances in the cyber domain have opened up new opportunities for the rise of potentially criminal behavior. Virtual child pornography - computer-generated still or video images displaying sexually implicit conduct involving children - is one such phenomenon. Different states have tackled it with varying ways of interpretations while placing it in their already existing legislative frameworks.
In Hungary, the production and distribution of such materials generally have not reached the threshold of criminalization, even though it can be argued to be included in the recently amended domestic legislation. Contrarily, in the Netherlands handling such material constitutes criminal behavior. In order to assess the similarities and differences between the two countries’ stance on virtual child pornography, their criminal systems’ historical background, approach to criminalization, and exact wording of the provisions in question should be analyzed.
The European Union, which both Hungary and the Netherlands are members of, has been aiming to harmonize Member State’s national laws in order to strengthen cooperation. Even though the prospects of harmonizing criminal systems in the EU is limited and the adoption of directly applicable set of rules is widely opposed, it is in the best interest of domestic judicial bodies and law enforcement agencies to find common ground, particularly regarding serious and largely transnational or jurisdiction-independent crimes such as online child pornography. Therefore, contrasting the Hungarian and Dutch systems, born from largely different historical and ideological backgrounds, would help the unification of the criminal systems in Member States, as well as provide legal certainty to European citizens.
Directive 2011/93/EU of the European Parliament defines child pornography as any material that depicts a child or “person appearing to be a child.” With this, the EU effectively obliged Member States to criminalize virtual child pornography. Regardless, there are still significant differences in the two countries' handling of such instances. The difference manifests in the values they conduct in their criminalization procedures. Criminalization is “the process by which behaviours and individuals are transformed into crimes and criminals.” This process largely depends on societal values. This is not to say that Hungarian societal values are more accepting towards child exploitation, rather that they place the emphasis of criminalization in the wrong-harm analysis on different aspects. The Hungarian approach aligns more closely with the principle of individual autonomy as championed by John Stuart Mill. On the other hand, the Dutch approach is based on the welfare principle, which considers society as a whole and aims to take the best interests of all citizens into account. It might be obvious that consuming or possessing virtual child pornography is wrong from a moral standpoint. However, for a conduct to become criminal, it is also required to be harmful. The question therefore is whether virtual child images are considered harmful, since there is no directly impacted victim involved. This is where the two systems see the biggest difference; the Dutch consider it harmful to society because “it possibly incites child abuse”, while Hungary does not, since there is no direct correlation to the “interest of the children.”
This leads to the question how these differences emerged. The two systems are relatively close to each other in a geographical sense, which contributed to both of them adopting the civil law tradition originating from canon law and the ancient Roman Corpus Iuris Civilis. Until the 20th century, both systems were largely influenced by and adopted similar provisions to the Napoleonic Criminal Code. However, after WWII, Hungary became occupied by Soviet forces, and ‘Stalinist law’ was implemented. This resulted in the forceful adoption of a new Criminal Code, with provisions contradicting the internationally accepted principles of criminal law; the nullum crimen sine lege protections were removed, and from 1950 retroactive prosecutions were made possible.
Hungary and the Quadripartite System
The categorization of the criminal offense was also changed into a quadripartite framework. To establish criminal liability, most systems require, at least, the proof of actus reus and mens rea. In quadripartite systems, however, two additional elements are introduced; the subject of the offense and the object of the offense. The former refers to the addressee of the norm, effectively setting out defenses - for instance, excluding liability for minors. More importantly, the object of the offense refers to the social harm the crime causes, giving power to the state to protect societal values it deems important. During the Soviet occupation, this aspect of criminal law was utilized to crack down on anti-communist leaders, thinkers, and civilians. After the collapse of the Soviet Union, the Criminal Code was again reformed. The quadripartite framework largely remained, but was significantly reimagined. A stated aim was to remove the moral or value-based aspect of the object of the offense. This resulted in an “impure” quadripartite system, in which the subject is often interpreted as the direct victim of the offense. This means that child sexual offences are generally seen as result crimes which require a prohibited outcome, rather than conduct crimes that would punish the behavior itself.
The Hungarian system therefore does not aim to penalize behavior based solely on the perceived and largely subjective wrongfulness, which was the decisive factor under communism, but weighs heavily on the harm element caused to the victims. With regards to virtual child pornography, the digital nature of such materials ensures that no actual child suffers the consequences of the person interacting with the digital material. Hungarian legislators have championed this objective approach, emphasizing that the object [“jogtárgy”] in regulating virtual child pornography should be the interest of the children, and since children are not harmed, there is no basis for criminalization.
The Netherlands and the Tripartite system
The Netherlands has taken a different approach than Hungary. Dutch criminal law has long departed from including morality in criminal offenses. After a Supreme Court ruling on pornographic magazine Chick, new legislation was enacted, which practically ended the sanctioning of all pornographic materials, including child pornography. This, however, was gradually modified over the years, to the extent that since 2002 even virtual child pornography is considered to be included in child pornography offenses.
Contrarily to Hungary, the Netherlands operates a tripartite system. This means that in order to prove criminal liability, wrongfulness and blameworthiness need to be established, as well as satisfying the definition of the offense. The wrongfulness here indicates harmful consequences and “public wrongs” that can affect society as a whole. This framework takes on a value-based approach, allowing for societal consequences to be taken into account when considering criminalization of an offense. This is why the framework in the Netherlands allows the possibility of incitement to real-life child molestation to be part of the wrongfulness element of virtual child pornography offenses. Furthermore, in the Netherlands, child sexual offences are seen as conduct crimes, and proving the mens rea element is generally not required.
Convergence of the two approaches
The Netherlands was one of the pioneer countries to adopt an effective ban on virtual child pornography. After the 2011 EU Directive on child pornography, the Dutch Criminal Code was amended in 2012, in line with their obligation to implement the Directive before December 2013. Contrarily, Hungary did not amend the definition of pornography in the Criminal Code until July 2021. The 2021 amendment, however, to the surprise of many legal scholars and professionals, did include a provision which could be interpreted to include virtual child pornography. The definition of “pornography” includes the showing of “persons or non-existent persons appearing real.” However, this does not mean that virtual pornography has become overall illegal in Hungary. Legislative commentary to the provision states that it should only include instances when the differentiation between a real child and the computer-generated image in question is virtually impossible. This, of course, does somewhat sway away from the original “harm” approach, but it is unlikely that it will result in any convictions, due to the rigid judicial practices and strong legislative commentary. Nevertheless, it leaves room for optimism that two largely different criminal legal systems are eventually converging towards a common framework.
In sum, the two systems approach this new challenge in largely different ways. While Hungary is working on the basis of a quadripartite system, aiming to eliminate the moral aspect of it left over from the soviet era, the Netherlands’ tripartite system has been increasingly implementing morality-based provisions. Regardless, the change in these two countries shows a tendency to converge, not least due to their obligations under EU law. Whichever way the Union and its Member States aim to regulate virtual child pornography, the harmonization between the countries is of high priority, as it will ensure the most effective administration of justice. Child exploitation in general is gaining more attention worldwide, and therefore it is crucial to ensure that the fragmentation of domestic criminal legal systems does not stand in the way of protecting children. As to the victimless nature of these specific crimes, there is still currently ongoing debate whether it incites predators to act violently against children, with some even arguing the opposite. When that debate is settled, whichever way EU and domestic legislations decide to implement it, the goal should always be to aim for a harmonized approach across different legal systems.
 Brian G. Slocum, ‘Virtual Child Pornography: Does it Mean the End of the Child Pornography Exception to the First Amendment?’, 14 ALB. L.J. SCI. & TECH. 637 (2004). Available at: https://scholarlycommons.pacific.edu/facultyarticles/581.
Act Amending the Criminal Code: 2021. évi LXXIX. törvény a pedofil bűnelkövetőkkel szembeni szigorúbb fellépésről, valamint a gyermekek védelme érdekében egyes törvények módosításáról Art.204 [Hereinafter: HCC]
Criminal Code of the Kingdom of Netherlands (Wetboek van Strafrecht) (1881, amended 2012) [hereinafter: DCC] Art.240.
 Pereira, R., Engel, A., & Miettinen, S. (Eds.). (2020). The Governance of Criminal Justice in the European Union. Cheltenham, UK: Edward Elgar Publishing. Retrieved Oct 28, 2022, p.9.
Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA, Art.(2)(c)(3) https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32011L0093 [Hereinafter: EU Directive].
 Michalowski, R. J. (1985). Order, Law and Crime: An Introduction to Criminology. New York: Random House. p.6.
 A. von Hirsch, ‘Harm and Wrongdoing in Criminalisation Theory’, (Criminal Law and Philosophy 2014) p.6
 Johannes Keiler, 'Actus Reus and Mens Rea: The Elements of Crime and the Framework of Criminal Liability' (chapter IV) in Johannes Keiler and David Roef (eds), Comparative Concepts of Criminal Law, 3rd edn. (Intersentia 2019) p.44.
 Ibid p.46.
 “Virtual Child Porn May Be a Crime in Netherlands” (Reuters February 21, 2007) <https://www.reuters.com/article/us-dutch-pornography-idUSL2114716620070221> accessed October 28, 2022
B. Csapucha, ‘A gyermekpornográfia hazai büntetőjogi szabályozása, s a jelenség ellen folytatott küzdelem a nemzetközi dokumentumok tükrében’ (Büntetőjogi Szemle 2020/1. szám) p.21
I, Drocsa, ‘The Effects of the Soviet Criminal Law Science on the Hungarian Criminal Law after 1945, with a View on the Principles of Substantive Criminal Law and Criminal Procedure and the Passed Laws Based on Those’ (PRO PUBLICO BONO – Magyar Közigazgatás, 2017/3) p.158, available:
J.Nowakowski, C. Jedrzejek, “Logical Model of Guilt as a Part of a Structure of Crime”, ( Institute of Control and Information Engineering, Poznan University of Technology) p.3.
 Drocsa (n.12) p.162.
“Eerste Kamer 2 Juli 1985” (Staten-Generaal Digitaal) <https://web.archive.org/web/20141221080009/http://www.statengeneraaldigitaal.nl/document/tekst?id=sgd%3A19841985%3A0000039&pagina=5> accessed October 28, 2022.
 Keiler (n.8).
Ibid p. 111.
EU Directive (n.5).
 AZ Online Gyermekpornográfia És a büntetőjog¹” (Mezei Kitti – Ügyészek lapja, 2022) <http://ugyeszeklapja.hu/?tag=mezei-kitti> .
 HCC (n.2) art.204(a)(8).
 Ambrus István: Digitalizáció és büntetőjog. Wolters Kluwer, Budapest, 2021, p.111.
 Reuters (n.10)
Bibliography Books -Ambrus, I: Digitalizáció és büntetőjog. Wolters Kluwer, Budapest, (2021) -Pereira, R., Engel, A., & Miettinen, S. (Eds.). (2020). The Governance of Criminal Justice in the European Union. Cheltenham, UK: Edward Elgar Publishing. Retrieved Oct 28, 2022 -Michalowski, R. J. (1985). Order, Law and Crime: An Introduction to Criminology. New York: Random House. Journal Articles -A. von Hirsch, ‘Harm and Wrongdoing in Criminalisation Theory’, (Criminal Law and Philosophy 2014) -Brian G. Slocum, ‘Virtual Child Pornography: Does it Mean the End of the Child Pornography Exception to the First Amendment?’, 14 ALB. L.J. SCI. & TECH. 637 (2004) -B. Csapucha, ‘A gyermekpornográfia hazai büntetőjogi szabályozása, s a jelenség ellen folytatott küzdelem a nemzetközi dokumentumok tükrében’ (Büntetőjogi Szemle 2020/1. szám) p.21 -I, Drocsa, ‘The Effects of the Soviet Criminal Law Science on the Hungarian Criminal Law after 1945, with a View on the Principles of Substantive Criminal Law and Criminal Procedure and the Passed Laws Based on Those’ (PRO PUBLICO BONO – Magyar Közigazgatás, 2017/3) -J.Nowakowski, C. Jedrzejek, “Logical Model of Guilt as a Part of a Structure of Crime”, ( Institute of Control and Information Engineering, Poznan University of Technology) Chapters -Johannes Keiler, 'Actus Reus and Mens Rea: The Elements of Crime and the Framework of Criminal Liability' (chapter IV) in Johannes Keiler and David Roef (eds), Comparative Concepts of Criminal Law, 3rd edn. (Intersentia 2019) Domestic and International Legislation -Act Amending the Criminal Code: 2021. évi LXXIX. törvény a pedofil bűnelkövetőkkel szembeni szigorúbb fellépésről, valamint a gyermekek védelme érdekében egyes törvények módosításáról -Criminal Code of the Kingdom of Netherlands (Wetboek van Strafrecht) (1881, amended 2012) -Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA Websites -AZ Online Gyermekpornográfia És a büntetőjog¹” (Mezei Kitti – Ügyészek lapja, 2022) -“Virtual Child Porn May Be a Crime in Netherlands” (Reuters February 21, 2007) -Eerste Kamer 2 Juli 1985” (Staten-Generaal Digitaal)