Witnesses raise issues with Senate bill restricting youth online access to porn

Internet and criminal justice experts sounded the alarm on a proposed Senate bill seeking to block pornographic websites in Canada if they do not comply with age verification requirements, arguing it could result in the over-blocking of legitimate websites and that exposure to pornography is not a public health crisis. Wednesday, the Senate’s Standing Senate Committee on Legal and Constitutional Affairs studied Bill S-210, an act to restrict young persons’ online access to sexually explicit material, such as how to effectively verify age online, which organizations to target, and how to reach companies abroad. “The internet has made pornographic content easily accessible to young people with negative consequences for their social and emotional development, their self esteem and their future romantic relationships. Even in the digital space, minors have rights, including the right to be protected from harmful content,” said bill sponsor Senator Julie Miville-Dechêne, according to a translation. According to Miville-Dechêne, countries in Europe, including France, the United Kingdom, and Germany have already adopted similar legislation. Miville-Dechêne said S-210 would require companies that distribute pornography on the internet to implement an age verification mechanism that meets “certain standards”, and those that refuse will be subject to a fine and an IP blocking order in Canada. Specific age verification mechanisms were not included in the bill because technology evolves quickly, and verification standards will be specified in regulation, the senator added. “Bill S-210 is not a law that censors content or limits freedom of expression. It is simply a replication of real world rules on the distribution of pornographic material to minors on the internet. For people over the age of 18 all legal content remains available,” she said. “Nor is this a law that gives arbitrary censorship powers to the government. The law is simple, clear and concise… The bill targets only organizations. There are clear exceptions for educational, scientific and artistic material.” Miville-Dechêne preemptively addressed arguments that age verification doesn't work because young people will always find a work around, by counter-arguing that it would “significantly reduce the prevalence” of access to pornorgraphic content. Miville-Dechêne told Senator Pierre-Hugues Boisvenu, when asked, that there are four million pornographic sites in the world, but only 50 large sites which individuals visit often (such as Pornhub, which is owned by MindGeek). She added that, given most pornographic websites are based abroad, the government will be designating an agency or service of the federal government to be the enforcement authority of the act. If they believe an organization is not verifying age, they can carry out checks of their own, and can verify complaints. Witness, and University of Ottawa Canada research chair in Internet and E-commerce Law Michael Geist, told the committee that while blocking specific illegal imagery “may be supportable, this bill is not.” “Indeed, by bringing together website blocking, face recognition technologies, and stunning overbreadth that would capture numerous mainstream services, the bill isn’t just a slippery slope, it is an avalanche,” he said. Geist said the reliance on website blocking was a concern (even with recent amendments made to the bill to engage the courts) because there is potential to over-block legitimate websites which raises freedom of expression concerns. “Particularly since experience suggests that over-blocking is a likely outcome of blocking systems,” he stated. “We’ve seen this in Canada dating back to 2005 when Telus intended to block access to a single site supporting a union action and blocked hundreds of other sites in the process.” Geist noted that websites like Twitter, Reddit or Snapchat, which have easily accessible explicit content, would likely refuse to implement age verification technologies, raising the question if the bill would force internet service providers to block the websites for all Canadians. Witness and director of the Canadian Council of Criminal Defence Lawyers Brian Hurley, also raised concerns that age verification may not work, saying gambling sites, which are highly regulated, require extensive verification, which may not work for pornographic sites. “I do share concerns about the lack of definition and overreach and leaving things for regulation,” he said, adding that the bill should be an administrative bill rather than a criminal bill, although the former will be a “money dump.” Geist also argued that costs associated with site blocking can run into the millions of dollars for technologies and services, employee time, and associated service issues. “The result would be higher consumer costs and less affordable access in one of the highest cost countries for internet services in the world,” he argued before the committee, adding that it website blocking was even criticized in the government’s recent consultation on online harms, with interveners advocating for a more targeted and human rights compliant proposal. Geist also brought forward concerns that age verification technologies, and the potential use of face recognition technologies raise privacy concerns and can cause bias and error, security risks, and the potential for misuse. “To actively legislate their use runs directly counter to the current movement that seeks to restrict the use of such technologies until an appropriate and effective regulatory framework is developed. There may be some companies that do it better than others, but in the absence of a regulatory framework, the last thing we should be doing is effectively mandating its use,” he argued. Associate professor at Carleton University’s Institute of Criminology and Criminal Justice, Lara Karaian, also spoke before the committee, arguing that treating pornography as a public health crisis has resulted, globally, in unwarranted policy and unconstitutional policy. “And the pathologization of forms of sexual behaviour including, pornography use, that has the potential to restrict sexual freedom to stigmatize normative and non-normative sexualities, is in fact, antithetical to public health,” she argued. She also argued that studies of pornography in the United States and other countries show that there is no correlation to pornography and sexual violence as well as its relationship to violent crime data, “and victimisation rate in the United States for rape actually demonstrates an inverse relationship.” Those who access pornography under 18 are most typically 16 and 17 year olds who are above the age of sexual consent and who are allowed, as aknowledged by the Supreme Court of Canada, to create sexual representations of themselves as long as it is for private use, according to Karaian. “So I would like to encourage the committee to acknowledge and recognize that sexual pleasure has intrinsic value in and of itself, and that pornography is a speech that is to be protected outside of its educational, artistic or medical context,” Karaian argued. “And indeed sexual expression has been deemed by Canada's Supreme Court as significant in adolescent sexual fulfilment, actualization and exploration, and identity.” Miville-Dechêne said she disagreed with Karaian because the studies she referenced were conducted on adolescents and adults, not children. “Many do reference the probable harms caused to children by pornography regarding sexually explicit material,” she said, according to a translation. – Reporting by Jenna Cocullo at jcocullo@thewirereport.ca and editing by Paul Park at ppark@thewirereport.ca

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Witnesses raise issues with Senate bill restricting youth online access to porn

Broadcast | February 10, 2022

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