Civil liberty and privacy experts are criticizing a draft bill aimed at restricting youths’ online access to pornography.
While well-intentioned, the bill jeopardizes the safety of Canadians’ personal information and is an example of government overreach, experts say.
“I think it’s unconstitutional what has been proposed in the bill,” said Emily Laidlaw, Canada research chair in cybersecurity law and associate professor of law at the University of Calgary.
Bill S-210 would make it a crime for commercial, sexually-explicit content to be made available to youth online. It calls for digital organizations to install an age-verification method for all users to filter out youth under 18 from watching pornography.
“It’s hugely overbroad in terms of its application,” said Michael Geist, a law professor at the University of Ottawa who holds the Canada research chair in internet and e-commerce law.
The legislation captures websites that aren’t explicitly porn sites but that could have nude or sexual content, says Daniel Konikoff, interim director at the Canadian Civil Liberties Association.
“There’ll be verification across the board for any sort of online service that allows users to post content,” said Laidlaw.
Social media companies such as Meta and X, search engines such as Google, and even internet service providers such as Fido and Rogers would be subject to it, says Matt Hatfield, executive director at OpenMedia, an organization that advocates for open communication systems in Canada.
And the bill allows the government to pull the plug on organizations that break the law. Even lawful content could be blocked under the bill, said Geist. “That raises significant freedom of expression issues.”
Unfettered access
Independent Senator Julie Miville-Dechêne, who authored the private member’s bill, says Bill S-210 is meant to stop youth from accessing pornography websites.
“You can’t buy a bottle of whiskey when you’re 12. Why is it that you have unfettered access to billions and billions of images of pornography, which can be violent, which can be degrading?” she said.
Germany, France, Spain and many US states have passed laws in recent years making age verification mandatory to watch sexual content online.
Giving youth unrestricted access to pornography is a public health issue, says the senator. Demeaning relationships and disrespectful behaviour in porn can negatively influence children.
A 2023 study on the effects of online pornography on youth by the UK’s Children’s Commissioner found 79 per cent of youth had watched violent pornography before age 18.
The commissioner’s survey of 1,000 young people aged 16 to 21 revealed almost half agreed girls “‘expect’ sex to involve physical aggression such as airway restriction or slapping.” Those who consumed more pornography were more likely to engage in physically aggressive sexual acts.
The study also found children saw more pornography on X than on adult sites. But Miville-Dechêne says the aim of the bill is not designed to target digital companies other than pornography websites.
Miville-Dechêne says the government will use common sense on which websites to target to avoid punishing non-pornographic websites. The bill also exempts any legal sexual or nude content, such as those related to “science, medicine, education or the arts.”
If the bill passes, organizations will face serious consequences for non-compliance. If a company does not comply within 20 days of a government notice, it will face $250,000 for a first offence, $500,000 for further violations and risk a federal court order shutting down the website.
“[A company] is not going to go case by case and say, ‘Well, I think this content is educational… is there artistic merit here?’,” said OpenMedia’s Hatfield. “There’s a risk that even if it’s not the intention of the bill, a lot of educational and artistic material is going to be censored under this initiative.”
Miville-Dechêne said clarifications on which digital companies will be targeted can be specified once the bill is passed and is in the regulatory stage.
Geist disagrees. The “regulatory process is often inaccessible to the majority of Canadians,” he said. “The notion that ‘let’s pass a broad bill and fix it later in regulations’ is not appropriate.”
Rudimentary systems
Civil liberty organizations are preparing an open letter to express their concerns about the bill’s privacy implications.
The bill does not have appropriate guidelines around what age-verification method companies can use, said Laidlaw. “There needs to be parameters,” she said. “Otherwise, it just incentivizes companies to put into place rudimentary verification systems that put at great risk privacy and, I think, security and expression rights of Canadians.”
Companies may use a cheap but insecure method to verify a user’s age that is more vulnerable to cyberattack, says Hatfield.
If made public, the information on pornography use could affect people’s livelihoods, says Konikoff.
“There could be very real employment consequences for that kind of information about them,” said Hatfield.
The bill outlines some requirements for age-verification technology but not a specific method. This is on purpose, says Miville-Dechêne, so the age-verification methods can evolve with technology.
Civil liberty organizations say that an age-validation “token” method could be a better approach that would not endanger personal information. This method would be similar to the electronic proof that some provinces implemented for Covid vaccines. A third-party service could validate an adult’s identity, then provide them with a certificate — that had no personal information attached to it — that could be used indefinitely as proof of age, says Hatfield.
Another solution is to have the device itself — software on a cellphone or iPad — verify the user’s age, said Solomon Friedman, a partner at Ethical Capital Partners, a Canadian private equity firm that acquired Aylo in 2023, the owner of Pornhub.
The verification would happen once on the device, then “every time you unlock your phone… you’re unlocking an adult device,” said Friedman.
Current age-verification legislation to block minors from online porn could encourage users to turn to other websites that do not have age verification, said Friedman. Once Pornhub complied with age-verification requirements in Louisiana, site traffic dropped 80 per cent within a day and has stayed low, he said.
“It makes it so obvious that the vast majority of users are not willing to participate in site based age verification,” said Friedman.
The bill now heads to the committee stage where Members of Parliament will further discuss the the legislation.
“If the government believes S-210 is flawed, it can propose amendments in committee,” said Miville-Dechêne.
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