Criminal Lawyers in Child Pornography Distribution

The offence of distribution, dissemination, facilitation or exhibition of child pornography (Art. 189.1.b CP) protects the sexual indemnity of minors and the dignity inherent to their condition. The provision sanctions with 1 to 5 years' prison the production, sale, distribution, dissemination, exhibition or facilitation of such activities regarding pornographic material elaborated using minors or persons with disabilities. Distribution is the most frequently prosecuted modality: most proceedings of Art. 189 CP originate from police detection of P2P downloads and sharing through undercover operations and specific tracking software. The offence covers "making available" to third parties and also possession for those purposes, which distinguishes it from mere possession for personal use (Art. 189.5 CP), with decisive practical consequences in criminal classification.

The difference between distribution and simple possession is punitively transcendental. Possession for personal use (Art. 189.5 CP) carries 3 months to 1 year of prison or fine, without necessary actual imprisonment and with possibility of sentence suspension when there are no prior records. Distribution (Art. 189.1.b CP) multiplies the penalty up to 5 years, requires greater proof of active will to make material available to third parties, and sensibly hinders suspension. The technical frontier between both modalities is "making available": any act allowing third parties to access the material —direct sending, uploading to shared cloud, P2P sharing, streaming exhibition, forum publication, distribution in Telegram groups— integrates distribution. The nuclear procedural problem is that many P2P programs automatically share downloaded files (seeding mechanism), turning what the user perceived as simple download into technically consummated distribution.

The commissive modalities present very different degrees of gravity. Active distribution through direct sending by email, WhatsApp, Telegram or upload to forums and exchange platforms is the most seriously reproachable modality: it implies unequivocal voluntary act of selecting material, choosing recipient and executing sending. Passive distribution by P2P seeding (eMule/eDonkey, BitTorrent, uTorrent, qBittorrent) is technically sharing but subjectively questionable: many users are unaware of the automatic sharing mechanism or default configuration of "Incoming" folders. The administration of groups, forums or channels where material is shared can integrate aggravated distribution or even criminal organization (Art. 570 bis CP). Dark web operations through Tor or encrypted networks with cryptocurrency payment systems are investigated with particular intensity due to their technical sophistication, although the organisation aggravation (Art. 189.2.f CP) must be proven, not presumed. Supreme Court case-law has had to outline case by case the scope of distribution intent in scenarios of automatic seeding.

Technical defence is built on four axes. First, the unawareness of automatic seeding: when the accused used P2P programs for their common use for legal downloads (movies, software, music), being unaware of the automatic sharing mechanism of downloaded files, distribution intent is excluded; computer expert evidence can prove the user's technical profile, default software configuration, absence of manual changes to sharing settings. Second, the reclassification to simple possession (Art. 189.5 CP): the absence of will to make material available to third parties, combined with low technical profile and casual software use, allows degrading the classification from distribution (1-5 years) to possession (3 months-1 year), with decisive consequences in sentence suspension. Third, the challenge of authorship attribution: in vulnerable wifi networks, shared devices in households with multiple inhabitants, simultaneous sessions of different users, the specific attribution of downloads and sharing to a particular person may be doubtful, the in dubio pro reo principle operating. Fourth, procedural defects: defects in the digital chain of custody, absence of write blocker, discrepant hashes, irregularities in entry and search, are potential evidentiary nullities.

In current forensic practice, police operations on distribution have reached massive dimensions. The BIT-Technological Investigation Brigade of the National Police and the GDT-Telematic Crime Group of the Civil Guard use specialized software that connects to P2P networks in real time and records IP addresses sharing files with hashes catalogued as child pornography in NCMEC and Interpol's ICSE databases. International cooperations with Europol, Interpol and national agencies (FBI, BKA, Gendarmerie) have allowed simultaneous operations with hundreds of indicted persons. Organic Law 8/2021 on integral protection of childhood, the Budapest Convention on Cybercrime and Directive 2011/93/EU have hardened penalties and expanded technological investigation tools. Organic Law 1/2025 on the efficiency of the Public Justice Service is a procedural and organisational statute: it does not amend the Criminal Code or its penalties. At Alonso Sala, our criminal lawyers specialized in child pornography distribution work with forensic computer experts to analyse P2P software logs, chronologically reconstruct sharing sessions, demonstrate the accused's low technical profile and articulate defences that allow reclassification to simple possession, sentence suspension when Art. 80 CP circumstances concur, and minimization of impact on the defendant's professional trajectory and criminal record.