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Supreme Court of Japan: Nude CG Images Based on Child Photos Are Pornography

Judge Takuya Miyama of the Supreme Court of Japan's First Petty Bench rejected on Monday the appeal of designer Akashi Takahashi (56), who was convicted in 2016 for creating and selling realistic computer graphic (CG) images of naked underage girls. Takahashi dropped his appeal of the previous court's charges, and the Supreme Court affirmed the Tokyo High Court's earlier judgment, upholding the defendant's guilty verdict and 300,000 yen (about US$2,700) fine.

Miyama stated, "Child pornography is a depiction of what can be visually recognized as a child's body. As the CG is based on actual nude children's photographs and depict a child's body, it is child pornography."

Takahashi was arrested in 2013 for distributing a self-published picture collection consisting of images of young girls that were scanned from photograph books published in the 1980s and early 1990s. The images were modified using editing software so that hairstyles, skin tones, and some of the poses differed from the photographs published in the original books. Takahashi was the first person to be arrested for realistic CG images under Japan's child pornography laws.

Before the Child Pornography Law of 1999, photograph books of nude young girls were widely circulated in Japan. At that time, an explicit non-censored photograph could be published only if the person in the photo did not have pubic hair. Although original books did not depict sexual activity, they may be classified as "type 3 child pornography," images in which "the minor is fully or partially undressed, and the visual representation is sexually arousing," under the 1999 law. Takahashi's picture collection was produced in 2009.

In 2016, the court ruled that three of the 34 images listed by the prosecution were realistic enough to identify the girls they were based on, and therefore against the law. The court fined Takahashi 300,000 yen and sentenced him to one year in prison, suspended for three years. Takahashi stated that it was not his intention to create child pornography, and he appealed the ruling.

The Tokyo High Court met in January 2017 for Takahashi's appeal trial. Presiding judge Yoshifumi Asayama overturned the previous ruling and reduced Takahashi's sentence to only the 300,000-yen fine. Asayama commented, "In cases where the real image of the child has been drawn faithfully and can be recognized, CG is also child pornography." However, because the source images are old, Asayama also said that the images presumably do not infringe on any children's rights.

Under Japan's current child pornography laws, images that use real models under the age of 18, including drawings, can be classified as child pornography. In 2014, Japan passed a law outlawing posession of child pornography, but the bill does not criminalize depictions in manga and anime.

The Office of the United Nations High Commissioner for Human Rights' Committee for the Rights of the Child published a new version of its "Guidelines on the implementation of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography" on September 10. Under article 2 of the original OPSC document, child pornography is defined as "any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes." The new guidelines specify that the phrase "by whatever means" in this definition reflects "the broad range of material available in a variety of media, both online and offline." The Committee adopted the guidelines in May 2019.

Sources: NHK Web, Kyodo News via Otakomu