Bill S-210

Protecting Young Persons from Exposure to Pornography Act

An Act to restrict young persons’ online access to sexually explicit material

This enactment makes it an offence for organizations to make sexually explicit material available to young persons on the Internet. It also enables a designated enforcement authority to take steps to prevent sexually explicit material from being made available to young persons on the Internet in Canada.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you, Mr. Chair.

The testimony today has been interesting. I think it's led the committee down a few different paths as we consider Bill S-210.

Mr. Ripley, we've heard a lot about the potential pitfalls with the term “sexually explicit material” as referenced in the Criminal Code and how it could be overly broad. If we go down further in the bill—still on page three, in proposed subclause 6(2)—it says:

No organization shall be convicted of an offence under section 5 if the act that is alleged to constitute the offence has a legitimate purpose related to science, medicine, education or the arts.

Wouldn't that “legitimate purpose” phrase, from the department's standpoint, save streaming companies like Netflix, since they would be under the arts category? How do you interpret that section?

Does that add further clarity to the concerns you raised about the definition of sexually explicit material?

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you, Mr. Chair.

Mr. Ripley, I want to go back to the definition of sexually explicit material. My colleague Mr. Genuis raised a good point. If there's a concern that nudity or a sex scene in a film or series will be considered sexually explicit material if Bill S‑210 comes into force, it raises questions about the sexually explicit material that already exists. Some movie scenes are already considered as such.

That's why I'm not sure what your concern is.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Thank you, Chair.

Thank you to our witnesses.

We're obviously familiar with the Liberal government's position on this bill. With respect to the officials, of course you're in a position to support that position. Your role as an official is not to come here and state your disagreement with government policy, even if you might privately disagree with government policy.

I will just say that I think that many of the arguments you put forward were clearly refuted by the senator already. I also want to say that I think Bill C-63 is a real disaster. It raises actual censorship issues. It has nothing on age verification. It's far, far broader than Bill S-210 at every level. It's enforced by vaguely empowered bureaucratic agencies and it includes dealing with speech.

Most Canadians who have seen what your government did.... To be fair, I understand your role as a non-partisan public servant, tasked with providing fearless advice and faithful implementation. However, what the Liberal government has put forward in Bill C-63 is not being well received across the board.

On the issues with section 171, I'm looking at the Criminal Code and trying to understand the argument here.

We have one definition of sexually explicit material in the Criminal Code. Implicitly, it's being suggested that maybe we could have multiple different definitions of sexually explicit material operating at the same time. However, it seems eminently logical that you would have one definition that relies on the existing jurisprudence.

As Mr. Bittle has suggested that if this definition covers the Game of Thrones, then it's already a problem because it already violates the Criminal Code if, in the commission of another offence, you were to show a child that material. Therefore, you already could run afoul of the Criminal Code if you put on Game of Thrones in your home for your 16-year-old. That's not happening. No one's getting arrested and going to jail because they let their 16-year-old watch Game of Thrones. If that's not happening already off-line, then maybe that suggests that this extensive reinterpretation of what the existing law already says is a little bit exaggerated.

In this context, we also know that Pornhub has been represented by a well-connected Liberal lobbyist who has met with Liberals in the lead-up to the vote.

I want to ask the Privacy Commissioner about what he said in terms of potential amendments.

How would this apply on social media? I'm going to just pose the question. I have young children. I obviously don't want them accessing the major, well-known pornography websites. I also don't want them seeing pornographic material on any other website that they might go to for a legitimate purpose. Therefore, if my children are on social media—they're not—or if they were on another website, if they were watching a YouTube video on that, whatever it was, I would want to ensure that 6-, 7-, 8-, 9-, 10-, 11- and 12-year-olds were not accessing pornography, regardless of the platform and regardless of the percentage of that company's overall business model.

I don't really understand philosophically why it would make sense or protect anyone's privacy to have an exemption for sites where it's just a small part of what they do, because if the point is to protect children, then the point is to protect children wherever they are.

I'd be curious for your response to that.

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

You also have concerns about the protection of privacy and personal information.

Comparisons are often made with Bill C‑63, but in my opinion, the two are quite different. Bill C‑63 aims to protect children from harmful online content, which is commendable. Bill S‑210 seeks to limit access to pornography.

The regulator you want to create through Bill C‑63 seems as though it could be very effective in playing that kind of role. The digital safety commission could play the same role as commissions in other countries. The same goes for the age verification processes.

Can you tell us what concerns you have regarding privacy, as well as any other concerns?

[Owen Ripley, Associate Assistant Deputy Minister, Cultural Affairs, Department of Canadian Heritage]

Mr. Chair, thank you for inviting me to discuss Bill S‑210. As the associate assistant deputy minister for cultural affairs at the Department of Canadian Heritage, I will be responsible for the Online Harms Act that is being proposed as part of Bill C‑63.

While Bill C‑63 was being drafted, the department heard directly from experts, survivors from civil society and members of the public on what should be done to combat the proliferation of harmful content online.

A common theme emerged from these consultations: the vulnerability of children online and the need to take proactive measures to protect them. With this in mind, the future online harms act proposes a duty to protect children, which will require platforms to incorporate age-appropriate design features for children. Bill C‑63 also proposes a specialized regulatory authority that will have the skills and expertise to develop regulations, guidance and codes of practice, in consultation with experts and civil society.

Bill S-210 seeks to achieve a similarly admirable goal of protecting children online. However, the bill is highly problematic for a number of reasons, including a scope that is much too broad in terms of regulated services, as well as regulated content; possible risk to Canadians' privacy, especially considering the current state of age-verification frameworks internationally; structural incoherence that seems to mix criminal elements with regulatory elements; a troubling dependence on website blocking as the primary enforcement mechanism; and a lack of clarity around implementation and an unrealistic implementation timeline.

I'll briefly unpack a few of these concerns in greater detail.

As drafted, Bill S-210 would capture a broad range of websites and services that make sexually explicit material available on the Internet for commercial purposes, including search engines, social media platforms, streaming and video-on-demand applications, and Internet service providers. Moreover, the bill's definition of sexually explicit material is not limited to pornography but instead extends to a broader range of mainstream entertainment content with nudity or sex scenes, including content that would be found on services like Netflix, Disney+, or CBC Gem. Mandating age-verification requirements for this scope of services and content would have far-reaching implications for how Canadians access and use the Internet.

While efforts are under way globally in other jurisdictions to develop and prescribe age-verification technologies, there is still a lack of consensus that they are sufficiently accurate and sufficiently privacy-respecting. For example, France and Australia remain concerned that the technology is not yet sufficiently mature, and the testing of various approaches is ongoing. Over the next couple of years, the U.K. will ultimately require age assurance for certain types of services under its Online Safety Act. Ofcom is currently consulting on the principles that should guide the rollout of these technologies. However, the requirement is not yet in force, and services do not yet have to deploy age assurance at scale. In jurisdictions that have already moved ahead, such as certain U.S. states or Germany, there continue to be questions about privacy, effectiveness and overall compliance.

In short, these international examples show that mandates regarding age verification or age assurance are still a work in progress. There is also no other jurisdiction proposing a framework comparable in scope to Bill S-210. Website blocking remains a highly contentious enforcement instrument that poses a range of challenges and could impact Canadians' freedom of speech and Canada's commitment to an open and free Internet and to net neutrality.

I want to state once again that the government remains committed to better protecting children online. However, the government feels that the answer is not to prescribe a specific technology that puts privacy at risk and violates our commitment to an open Internet. It is critical that any measures developed to achieve this goal create a framework for protecting children online that is both flexible and well-informed.

Thank you for your attention. I look forward to any questions you may have.

[Philippe Dufresne, Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada]

Thank you, Mr. Chair.

Thank you to the Members of the Committee for this invitation to appear on your study of Bill S‑210, An Act to restrict young persons’ online access to sexually explicit material.

As Privacy Commissioner of Canada, my mandate is to protect and promote individuals’ fundamental right to privacy. This includes providing advice, guidance, and recommendations for protecting personal information, and overseeing compliance with Canada’s two federal privacy laws—the Privacy Act, which applies to federal government institutions, and the Personal Information Protection and Electronic Documents Act, which is Canada's federal private-sector privacy law.

In January, I launched my Strategic Plan for my Office which is focused on three priority areas: maximizing the OPC’s impact in promoting and protecting the fundamental right to privacy; addressing and advocating for privacy in this time of technological change; and championing the privacy rights of children.

I support the purposes of Bill S-210, which include protecting the mental health of young people from the harmful effects of being exposed to sexually explicit material, but the bill raises some privacy implications, and I would propose some changes to address them.

As drafted, the bill provides that any organization that makes sexually explicit material available online to a young person for commercial purposes is guilty of an offence and liable to a fine that would increase in amount, depending on whether it was a first or subsequent offence. A defence is available if an organization believed the young person was at least 18 years of age, having implemented a prescribed age verification method to limit access to the sexually explicit material.

Age verification can raise privacy implications, as it generally requires the collection of personal information, which could include biometrics or identity documentation. As drafted, the bill would apply to services, such as social media and search engines, that may make available some sexually explicit material, but may be primarily focused on other content. This could result in age verification requirements, including when the majority of content may not be of a sexually explicit nature.

To address this, the committee could consider restricting the requirement for age verification to websites that primarily provide sexually explicit material for commercial purposes.

Before prescribing an age-verification method, the Governor in Council would need to consider certain criteria, including whether the method maintains user privacy and protects users’ personal information. These criteria are important and beneficial.

I would recommend adding additional criteria to the list to ensure that the prescribed methods are sufficiently privacy protective. Specifically, this could include assessing whether the prescribed methods are proportionate and limit the collection of personal information to what is strictly necessary for the verification. Age-verification methods should also prevent tracking or profiling of individuals across visits to websites or services.

Internationally, various jurisdictions have taken action to prevent children from accessing pornography, but some of these laws have a narrower application than Bill S-210. For example, Texas and Utah only require age verification measures on sites that meet a certain threshold of pornographic content. Some regulators have also worked to mitigate the privacy risk associated with the use of age verification technologies. For example, Spanish and French regulators have worked with researchers to develop and evaluate potential age verification mechanisms.

My office is conducting further research in this area and is a member of an international working group with other privacy regulators to share information on age-verification methods and learn from each other’s experiences. Notably, members of this working group intend to publish a joint statement of principles for age assurance later this year. My office is also developing guidance for organizations on age assurance and privacy, and will launch an exploratory consultation on this next month.

Finally, should Bill S-210 be adopted, I would be happy to provide advice on regulations that pertain to privacy and the protection of personal information at the appropriate time. I will be pleased to take your questions.

Thank you.

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

I only have a few seconds left, but I want to hear your thoughts on the fact that, according to the government, we don't need Bill S-210, since there's Bill C-63. To my knowledge, they're not the same at all. Bill C‑63 is extremely important, to be sure, but it's not identical to Bill S‑210. Do you share that opinion?

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you, Mr. Chair.

Senator, thank you for coming. I'm eager to hear you speak about Bill S-210, an important bill that aims to restrict young people's online access to sexually explicit material. We could also say that it aims to protect young people from learning about sex from online porn.

I liked the way you described the bill when you said that its purpose is to do online what we do offline. Things were much easier when children weren't allowed to go to convenience stores to buy magazines containing pornographic material. Now it's a little more complicated, with everything available online.

You will have noticed though that this bill does not meet with unanimous approval. The government voted against sending it to a parliamentary committee for study. It's thanks to the vote of the other opposition parties that the committee is able to study this bill today. I've read it and I think it's a good bill. In fact, the Bloc Québécois supports it.

Age verification is obviously not a simple matter. We have read about what's being done in other countries. You mentioned Germany, the UK, France, some US states, Spain and Australia, among others. From what I have read about the concrete measures taken by those countries, I note that the law has yet to be applied in many cases, or that it will only be applied in future pilot projects. So we don't necessarily have a clear indication of what is being done and what Canada could do, or examples from which to draw inspiration.

I'd like to hear your comments on a question you raised earlier, and I'll allow you to answer in French: Why did you choose to have the operating provisions in the regulations rather than right in the bill?

What kind of regulations would you like to see the government put in place? Aren't you worried about putting everything in the regulations, given that the government doesn't want anything to do with Bill S-210?

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Thank you.

Bill S-210 requires that some age verification method be used, but it does not prescribe the method. Is that correct? Why not explicitly define the age verification method in statute?

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Okay.

Does Bill S-210 create or call for the creation of a digital ID?

[Julie Miville-Dechêne, Senator, Quebec, ISG]

Thank you, Mr. Chair.

Thank you for the invitation to talk about Bill S-210. I'd be happy to answer questions in French, but I'm going to give my speech in English, because that's the language in which most of the criticism has been voiced.

To answer your question directly, let me say the following: This bill has been the subject of two studies at committee, because of the election. We have heard from 24 witnesses and there were 28 briefs. So we can say that this bill has been thoroughly studied at the Senate.

Bill S-210 seeks to apply to online porn the rules that normally apply off-line. The bill does three things. First, it requires websites that offer porn to verify the age of users before they can access that content. Second, it sets up an enforcement mechanism that can result in non-complying websites getting blocked in Canada. Third, it provides that acceptable age verification methods will be decided in regulation, to be adopted after consultation and with input from experts. The bill specifies that any approved method must be reliable, collect information solely for age verification purposes, destroy any personal information once the verification is done and comply with best practices.

Polls indicate that close to 80% of Canadians support age verification to access porn online, but Bill S-210 has been attacked, and I want to correct some misrepresentations.

It has been said that no country has done this. This is false. Germany, France, the U.K., the European Union and several U.S. states have passed laws and regulation to impose age verification to access porn. Spain is expected to launch a pilot project soon. Australia, which had paused this work, announced last week that it would move ahead.

It has been painted as a partisan or ideological bill to control sexuality. False. Age verification is supported by the socialist government of Spain and the conservative government in the U.K. In California, an age verification bill was recently approved unanimously by two legislative committees. This is not partisan legislation.

It has been called an attack on free expression. False again. Bill S-210 would not affect the availability of porn for adults; it would simply prevent children from accessing it. In Europe, porn sites have challenged age verification laws and have failed at every stage. In the U.S.—a country known for its robust speech protection—porn sites have challenged the laws and they have failed all the way to the Supreme Court.

It has been said that age verification would mean submitting personal identification to porn sites. False again. In Europe and elsewhere, age verification is typically done by third party companies using methods that transmit no personal information to porn sites. These are among the best practices we would expect in Canada as well.

It has been said that this bill would block all forms of nudity. False. The bill uses the standard definition of pornography found in the Criminal Code. The bill also provides for usual exceptions for art, science and education.

It has been said that this bill would impose age verification on all websites. False. Bill S-210 only requires age verification to access porn content. If a website contains porn and non-porn content, age verification is only required to access the porn content.

It has been said that there's no way to check someone's age without compromising privacy. False. France is developing a double anonymous method. The U.K. regulator has recommended age estimation approaches that collect no information. Australia has explained its recent decision to move ahead with age verification by saying that the technology it looked at only a year ago has already improved.

Finally, it has been said that age verification is useless because kids will find ways around it. This is once again false. Actual studies show that only a small number of children know how to evade these restrictions. It's possible that some older teenagers and adults will use VPNs to bypass age verification, but it's highly unlikely that large numbers of eight, 10 and 12-year-olds will do so.

I will be happy to take questions, but please, please, don't let Canada be the last place on earth where pornographers are more protected than children.

[The Chair, Liberal, Ron McKinnon]

Actually, this process is not particularly unusual for this place at this time of year, nor is the sudden rapprochement towards the end.

To our witnesses, thank you for waiting. We'll continue with your remarks now, followed by questions. You were slated for a full hour. We have resources to give you that full hour. Mr. Dufresne is out there with Ms. Lara Ives. I've advised them that, when we start, we will bring them in an hour later, so we will have that full panel, as well.

That being the case, I would like to now welcome the witness who is the sponsor of Bill S-210 in the Senate. I should note that Senator Miville-Dechêne has been shepherding this bill through the various processes since 2020. I think she's launched it four times.

Anyway, we're glad to at last have you able to speak.

We have the Honourable Julie Miville-Dechêne, senator. We also have, as an individual, Jérôme Lussier, director of parliamentary affairs for the office of Senator Miville-Dechêne.

I now invite the senator to make an opening statement of up to five minutes.

Please go ahead.

[The Chair, Liberal, Ron McKinnon]

Well, that is true. That is an absolute. Let's leave it at this point, where they can go forward as best they can, because they teach us, anyway.

That being the case, we have unanimous consent for that agreement.

Are you clear, Mr. Clerk, on what that is?

Okay. Very well. Let us get back to Bill S-210.

Let me first acknowledge that Mr. Genuis was not wrong before. I hate to say that, but it's true.

[The Chair, Liberal, Ron McKinnon]

The clerk distributed on Monday, May 6, and May 24, a draft budget on Bill S-210 in the amount of $15,000.

Does the committee wish to adopt the budget? Can I have a show of hands?

(Motion agreed to)

Similarly, I note that the deadline to report Bill S-210 to the House is Friday, June 7.

Is it the will of the committee to request an extension of 30 sitting days for the consideration of Bill S-210 and that the chair present a report to the House? May I have a show of hands on this, please.

[The Chair, Liberal, Ron McKinnon]

I call this meeting to order.

Welcome to meeting number 108 of the House of Commons Standing Committee on Public Safety and National Security.

Pursuant to the order of reference referred to the committee on Wednesday, December 13, 2023, the committee is resuming its study of Bill S-210, an act to restrict young persons' online access to sexually explicit material.

Before we begin, I would like to ask all members and other in-person participants to consult the cards on the table for guidance to prevent audio feedback incidents.

Please take note of the following preventative measures in place to protect the health and safety of all participants, including the interpreters. Only use a black approved earpiece. The former grey earpieces must no longer be used. Keep your earpiece away from all microphones at all times. When you are not using your earpiece, place it face down on the sticker placed on the table for this purpose.

Thank you all for your consideration.