Why the Greta sticker didn't meet Canada's broad child pornography definition

The premier called it odious. 

Alberta’s minister for the status of women called it deplorable, unacceptable, and degrading. Hillary Clinton told CNN it was misogynistic and violent.

Online outrage and public denunciations abounded after an explicit decal of 17-year-old climate activist Greta Thunberg surfaced last month, with the logo for Alberta company X-Site Energy Services directly underneath the image.

But one thing the sticker wasn’t? Criminal.

So how did investigators determine that?

Alberta RCMP looked at the case and decided the image didn’t meet the elements of child pornography. The sticker, which CBC has chosen not to republish, had a black-and-white drawing of a female figure’s bare back with hands pulling on her braided pigtails. The name “Greta” was written below. 

In Canada, material doesn’t have to feature a real child to be child pornography: it’s any depiction of a person under 18 in an explicit sexual act, or an image that focuses on genitalia or anal area of a person under 18.

“It does take other forms,” said Det. Dwayne Welfl, an investigator with the Internet Child Exploitation (ICE) unit of Alberta’s Law Enforcement Response Teams. “It’s any visual representation. That can be cartoons, anime … it can be an audio recording. It can also take written form.”

ICE’s investigations are often focused on large-scale collectors of child pornography, who may have thousands of images, and Welfl said cartoons and anime are often mixed in with pictures and videos of real children. 

“I can tell you that the anime that I’ve looked at is usually far more horrendous (in) what it’s depicting than a lot of times what you’ll see in videos or films, because of course you can do anything in a cartoon,” Welfl said. “There’s no boundaries, as opposed to real life and in terms of the real victim.

When investigators are going through materials, Welfl said, it’s usually quite clear if something is or isn’t child pornography. But when dealing with fictionalized depictions of explicit acts, there is a grey area.

“If you’re hitting that threshold where you’re debating with yourself when you’re looking at that — is that a 16-year-old? Is that an 18-year-old? Is that a 20-year-old — then in terms of animation, cartoons, we’re generally not looking towards charging someone for that.”

He said investigators look for things like signs of puberty, the size of the figures, and other signals that a depiction may not be an adult. 

ALERT Internet Child Exploitation unit Det. Dwayne Welfl says it’s common for comics and illustrations to form part of child pornography collections seized by Alberta police. (Dave Bajer/CBC)

For the RCMP, there were a few reasons the Thunberg sticker did not meet the threshold to be considered child porn, including that it wasn’t explicitly identifiable as the teen to a person unaware of the social context.

“Regardless of how distasteful I’m sure many people have found this image, our investigators did not see this image as something that explicitly represents a public figure,” Alberta RCMP spokesperson Fraser Logan said in an interview. 

“Greta” is just a first name, and the figure also wasn’t explicitly that of a minor.

“The image itself does not show any sexual organs,” Logan said. “And, what may be a little bit more difficult to understand, the image does not explicitly show a sexual act. The image requires the viewer to fill those details into the mind’s eye.”

A censorship issue

Canada’s definition of what constitutes child pornography is broader than those in some other countries, which means materials that are legal elsewhere could be criminal here. 

“Canadian laws are particularly onerous, not just due to the presence of serious mandatory minimum sentence of imprisonment, but also due to the extremely broad definition of ‘child pornography,'” a lawyer wrote in a 2012 legal memorandum prepared for the Comic Book Legal Defense Fund on pornographic anime and manga. 

The Canadian version of the defence fund (there’s also an American group) raises money to help defend artists, comic book shop owners or others facing prosecution. Edmonton-based fund board member Jay Bardyla said his understanding is that the group was founded in the 1980s after a comics shop owner was financially wiped out defending himself against a pornography trafficking charge, even though he was ultimately found not guilty.

Bardyla said there are fewer Canadian attempts to ban and censor comic books than there are in the U.S. But when an issue arises, he said, it’s often at the border when a customs agent makes a determination that a fictional character in an explicit drawing is a minor. Sometimes it’s a comic purchased abroad that someone is bringing into Canada, and in some instances it could be artists who have their laptops seized, which prevents them from carrying on with their work.

He said it’s onerous to challenge a seizure, and typically people just surrender the product. But when his group gets looped in, they can help connect people to lawyers or offer some funding. He said the organization doesn’t exist to make determinations if art is legal or not, but rather to ensure there is a voice to offer balance and to temper trampling of individual freedoms by individual border guards’ personal views.

“It really boils down to a censorship issue, and who’s telling what person what they can and cannot make, or read, or buy,” he said. 

He said there are clearly lines one can’t cross, and there are cases when the group has declined to offer assistance to someone in possession of what is obviously child porn.

“In the end, it’s very much case by case,” he said.

The company apologized and said it planned to collect and destroy all of the stickers.

Bardyla described the sticker depicting Thunberg as gross and inappropriate, and said he understands why some people were frustrated it wasn’t deemed to be criminal.

“There are other ways to penalize agencies that do things that are inappropriate as opposed to criminal,” he said. “And I think overall the public took (the company) to task for that. Sometimes the court of public opinion is the way to get that done.”

‘Fuelling victimization’

For Welfl, animations and illustrations are just part of an overall jump in the volume of child porn cases that not only his team but child exploitation investigators nationally are seeing.

Welfl’s unit covers Alberta cases north of Red Deer. There’s been a steady increase in the group’s caseload over the past few years, and he said they are on track for another record number of new files opened in 2020.

It’s rare for Welfl to investigate someone whose collection is solely animations or illustrations— though he said he is working on a file that has upwards of 500 images, all of which are anime. 

Welfl said people should take note of the differing laws in Canada and other countries if they’re abroad or considering purchasing materials that feature children.

“At the end of the day it’s victimization. At the end of the day, even if it’s cartoons, if it’s anime, that’s still fueling a fantasy, still fuelling victimization,” he said.

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