Moved second reading of Bill S-203, An Act to restrict young persons’ online access to sexually explicit material.

She said: honourable senators, I’m speaking today at second reading of Bill S-203, An Act to restrict young persons’ online access to sexually explicit material.

Over the past 10 years people have watched the equivalent of 1.2 million years of pornographic videos, and 95% of this occurs on free commercial sites where there is no age verification. If you add up the videos viewed annually on the most popular porn sites, like XVideos, Pornhub, XHamster and YouPorn, you get the astronomical figure of 350 billion videos. And don’t think that all these sites are operated outside of Canada; the most popular site, Pornhub, is owned by MindGeek and based two hours away from the Senate in Montreal.

There are an estimated 4.5 million porn sites around the world. More to the point, the content of porn videos has changed significantly. They have become hardcore, extreme and cruder than ever and are often violent and demeaning to women who are subjected to degrading treatment. The most popular practice is near-asphyxiation.

These platforms also carry amateur videos in which minors are sexually exploited and participants did not consent to their publication. Yes, this is illegal, but the sites are not prosecuted because they are not the authors of those videos. In the early days of the internet, these platforms, which are based on the YouTube model, were given a lot of freedom on the grounds that filtering people’s amateur videos would be a violation of the freedom of expression.

This troubling reality is the backdrop to the thought process that led me to develop this bill. Its short title is Protecting Young Persons from Exposure to Pornography Act. The bill is very focused. It’s about protecting minors because exposing children to increasingly violent online porn can damage their health at a time when they are rapidly growing and their cognitive and behavioural functioning is still developing. This is a matter of public health and safety that can no longer be ignored. I will return to this aspect later.

The internet has become an essential part of nearly every aspect of children’s lives. Given their heavy use of smartphones and tablets, children are being first exposed to porn at the age of 11 on average. More than half of Canadian children access this content from their smartphones, instead of from a computer at home, making it difficult for parents to monitor and control their online activities. In short, kids can easily stumble across an anal penetration video while they are browsing.

It is estimated that 22% of minors who consume porn in Great Britain are children under the age of 10. Free porn sites make their money notably from advertising video games of a sexual nature that precisely target young people. In Canada we have few studies, but according to the most recent survey 40% of boys in high school have seen porn online; 28% look for it at least once a day or once a week; and 7% of girls declare having watched porn.

So why are these adult sites not filtering to prevent access to minors, especially the major sites that earn staggering profits? That’s what we would expect, given that this has been going on for about 20 years and these sites have a self-regulatory system. However, no action has been taken because sites fear losing a good chunk of their users. Clearly, self-regulation has been a resounding failure. Porn sites do nothing but ask users to check a box stating that they are 18.

Online porn is a legal industry, but its functioning is not consistent with our consensus as a society. Porn is supposed to be only reserved for adults. The proof is that access to all porn, aside from online access, is regulated by law.

The provinces classify films to protect youth. In Quebec, for example, feature films that contain mostly scenes of explicit sexual activity are restricted to adults. Cinemas are to bar persons under the age of 18, 16 or 13. Retailers have to respect this classification when they sell or loan videos containing explicit sex scenes. Municipalities prohibit minors from accessing sex shops and porn magazines, which must be shelved at a specific height. That means our kids can freely watch Pornhub but they cannot buy a Playboy magazine. What a paradox.

At the same time, there has been an international effort driven by the United Nations to recognize that children are entitled to appropriate information about their sexuality and human reproduction. This is critical. In my previous roles, I strongly defended the importance of sex education at school, but sex education has nothing to do with porn. In 2016, the American College of Pediatricians issued this warning:

Because of its harmfulness to children, pornography must never be used as a tool to teach children human sexuality.

The many laws on porn show that legislators’ intention is to ensure pornography is not available to minors. Why should it be any different on the internet?

Where are the parents in all of this? The main argument of those opposed to any legislative oversight is that this is a parental responsibility and that it’s up to each parent to use filters. However, the proposed filters are not foolproof and can be turned off by resourceful teenagers, who can easily find instructions online. Furthermore, parents need to be aware of this to begin with.

According to an extensive survey in Britain, 75% of the 1,000 parents surveyed believe their children do not view pornography online, while in reality, 53% of children said they do. A European study even found that parental filters are ineffective at stopping adolescents from viewing sexually explicit material. Furthermore, these individual filters cause slower connectivity, do not adequately block explicit material or, on the contrary, allow access to too much content, but also prevent young people from viewing sex education materials.

Why should parents be solely responsible, when in many other areas of public health, retailers are asked to verify the age of customers buying cigarettes or alcohol, for example? Those checks are not foolproof, but they do represent an obstacle.

Parents are asking for help. According to a survey by the Canadian Centre for Child Protection, 60% of respondents said they are very concerned that their children are being exposed to pornographic or violent images. In Great Britain, 83% of parents surveyed in an extensive survey called for effective age-verification controls.

The real objective of this bill, as set out in clause 3, is to protect the mental health of young persons and, more broadly, to protect Canadians, in particular young persons and women, from the harmful effects of pornography, which is a public safety issue.

That is the crux of the bill. The harm done to children who are exposed to sexually explicit material is a real and urgent social concern. Scientific research is making more and more worrisome connections between the consumption of pornography and the health or behaviour of young people.

Here is what we know. When adolescents frequently view pornography, it can lead to compulsive consumption, create unrealistic expectations about their own experiences, generate fear and anxiety, and affect their self-esteem by distorting their perception of their own bodies.

Certain symptoms of depression are linked to the consumption of pornography by minors. Young people who view it may suffer an impaired level of social functioning. There is also a link between watching pornography and poorer academic performance. Since the teenage brain is at a unique developmental stage, exposure to pornography may compromise inhibition and self-control and may increase impulsivity.

What do young people, boys in particular, absorb from what they see? Repeated consumption of pornography by adolescents reinforces gender stereotypes and perpetuates sexist beliefs and the objectification of women. All this increases the likelihood of them viewing women as sexual objects reduced to their body parts whose purpose is to satisfy men’s desires.

According to a three-year American study, adolescents who consume violent pornography are six times more likely to be sexually aggressive than those who consume non-violent pornography or no pornography. Other studies have shown that unprotected sex as depicted in pornography can influence young people to have unprotected sex.

It’s important to note that a direct causal relationship between pornography and sexual violence has not been scientifically proven. However, alarming links between the two phenomena have been clearly established in the literature.

Despite these methodological limitations, there is enough research to believe that porn is a risk factor for minors. I would like to quote from the most comprehensive scientific review made at the request of the Australian government:

. . . the most dominant, popular and accessible pornography contains messages and behaviours about sex, gender, power and pleasure that are deeply problematic. In particular, the physical aggression (slapping, choking, gagging, hair pulling) and verbal aggression such as name calling, that is predominantly done by men to their female partners . . . permeate pornographic content. . . . In addition, this aggression often accompanies sexual interaction that is non-reciprocal . . . and where consent is assumed rather than negotiated.

Thirty-seven per cent of online porn scenes depict violence towards women. This distorted view of sexuality can traumatize children.

According to the respected Canadian Centre for Child Protection:

Adult pornography is not only harmful to a child’s developing brain, it is also used to groom children for sexual abuse and to normalize sexual activity.

Pediatrician Jean-François Chicoine at Sainte-Justine Hospital observed the following in his practice, and I quote:

Exposure to pornography is always harmful, whether it occurs too young, too often or too intensely, but for certain children, it represents a real cataclysm that shatters their self-esteem and their relationships with others for all time. In children’s brains, exposure to pornography is an intrusion that is disturbing, makes them anxious or causes nightmares. Worse, porn creates images, distorting their thoughts and expectations about the world. . . .

Moreover, the Association des pédiatres du Québec and the Canadian Paediatric Society support this bill unreservedly.

I will now provide some definitions. The term “sexually explicit material” is defined in the Criminal Code as the representation of explicit sexual activity, the dominant characteristic of which is the depiction, for a sexual purpose, of a person’s genital organs or anal region or, if the person is female, her breasts.

Within sexually explicit material, there is a category called “obscene material,” the production and publication of which is strictly prohibited in the Criminal Code. Obscene material is defined as any publication, and I quote:

. . . a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence. . . .

Bill S-203 proposes to restrict children’s access to sexually explicit material available online for commercial purposes with a view to reducing the harmful effect on their health. There have been alarming warnings in case law concerning the dangerous repercussions of exposure to obscene material prohibited by the Criminal Code. Exposing minors to this type of content is even more reprehensible. Consequently, in accordance with clause 8 of the bill, the court must consider as an aggravating circumstance the fact that a commercial pornographic site did not verify the age of the minors and thus made obscene material available to them.

I would like to quote the ruling by Supreme Court Justice Gonthier in Butler:

Obscene materials debase sexuality. They lead to the humiliation of women, and sometimes to violence against them. This is more than just a matter of taste.

Hence, clause 4 of the bill makes it an offence to make available sexually explicit material on the internet to a minor for commercial purposes. A first offence is punishable by a fine of not more than $10,000 for an individual and $250,000 for a corporation. Fines for subsequent offences are more substantial.

Nevertheless, for those who are concerned about the risk of censorship of educational or artistic material, I would like to say that there is an explicit exception in the bill about this. Sex education, whether on the internet or elsewhere, is necessary. Artists have always been inspired by nudity and sexuality, but again, that has nothing to do with pornography. Subclause 2 of clause 7 specifically provides that any sexually explicit material with a legitimate purpose related to science, medicine, education or the arts is not subject to the restrictions in the bill. Censorship is not an issue here.

What is more, under subclause 7(1), the accused has a defence if the accused implemented an effective age-verification method prescribed by the regulations that will accompany the act.

We have now come to the question of how to verify a user’s age before they consult a site. Today, with advanced technologies, the age of online consumers can be verified safely.

On other internet sites, consumer age verification is already mandatory. For online gambling, there are identity checks up front, which are generally done by credit card. For online alcohol purchases, the customer picking up the bottles is carded. Throughout the world, an entire private age-verification industry has developed.

Technology keeps advancing, so a regulatory approach is the most prudent way to establish age-verification requirements. That is why such requirements are not in the bill. Experts agree that verification must be carried out not by porn sites but by third parties specializing in this service. This precaution is essential for ensuring that porn sites cannot access their clients’ personal information. That barrier is crucial.

Yoti, a British company, explained to us that it verifies age using a liveness test and ID cards. The data are then encrypted. The whole process takes three to five minutes, after which internet users receive a certified age token in their browser that contains no identity information other than the fact that the user is 18 or older. Third parties authorized by the government to conduct age verification would be required to comply with information security standards.

Here is how the Age Verification Providers Association describes the process:

. . . age verification is not identity verification. They’re very separate. What we try to do is have the minimum amount of data used in the first place and then retain going forward. For quite a lot of uses, you wouldn’t need to retain any personal data at all. All you need to know is that person X — and we only know them as ‘X’ — has at some point proved, to a certain standard, that they are over a particular age or within a particular age range or they have a particular date of birth.

It is possible to use other methods, such as the purchase of a “porn pass” at a store that would check the buyer’s age in person or a digital ID in the form of a smartphone app. That is a concept that would enable users to maintain full control over their data.

I am certainly not the first to think that action needs to be taken. Germany is going to make it mandatory for internet service providers to block access to the most popular foreign-based porn sites if those sites continue to refuse to implement an effective age-verification system.

In July, France adopted an amendment to its law to protect victims of domestic violence. The amendment states that the sexual imaginations of young people who are exposed to violent pornography can be shaped by the brutality of the images they see. They then mirror that brutality in their relationships, making pornography a vector of domestic violence.

As a result, administrators of pornographic websites could be subject to a sentence of three years in prison and a fine of €75,000 if they do not implement a stricter age-verification system than a page where users must declare on their honour that they are over the age of majority. Of course, that does not do any good.

A court could also authorize internet service providers to block pornographic websites and de-index them in France. That would be an even harsher penalty.

What expedited the process in France was that the number of requests for access to pornographic websites dramatically increased during the pandemic. Senator Marie Mercier, who proposed the amendment, believes that young people are watching more and more violent pornographic movies that used to only be watched by sado-masochists. She said, and I quote:

Today, violence has become normal, and young girls think it is normal for their partner to be violent.

A French study found that 42% of young people polled said that they had already tried to reproduce certain scenes they had seen in these porn videos.

France is the first western country to take decisive action, but it was Great Britain that paved the way in 2017, causing much ado. The British Parliament passed the Digital Economy Act, which requires commercial pornographic sites to put an age filter in place through certified third-party companies.

In Great Britain, debate on the benefits and risks of these controls has gone on for two years. The law was supported by the major child protection agencies like the National Society for the Prevention of Cruelty to Children. But more and more privacy advocates, especially the Open Rights Group, have spoken out against the potential abuses of this type of verification since privacy protection mechanisms were not mandatory. Critics said that Britain was heading for an inventory of citizens’ porn preferences.

Theresa May’s government pledged to move forward, but her successor, Boris Johnson, was embroiled in Brexit and an upcoming election. He reneged in October 2019.

Australia is ahead of us in many respects. It established an eSafety Commissioner in 2015 who is responsible for internet safety for children and youth. The commissioner can require a site to take down illegal or offensive content. The Australian government is also evaluating facial recognition technology to confirm the age of adult website users.

Earlier this year, in February, an Australian parliamentary committee, mandated by the government, recommended establishing a third-party age-verification system for accessing online porn and gambling sites in response to the widespread community concern. The committee’s report, entitled Protecting the age of innocence, does not mince words:

The Committee heard that young people are increasingly accessing or being exposed to pornography on the internet, and that this is associated with a range of harms to young people’s health, education, relationships, and wellbeing. . . .

In the committee’s view, although age verification is “not a silver bullet,” it would play a major role in preventing young people, especially young children, from being exposed to harmful content.

This observation applies to Bill S-203. The most determined young people could still defeat these controls, especially with VPN technology, which allows the user’s country to be covered up. But even if the proposed mechanism is not perfect, it would still block access to a large number of children.

Where does Canada stand on this issue? We are very late. In a 2017 report, the House of Commons Standing Committee on Health concluded that there was too much uncertainty regarding pornography’s negative and positive effects on young people to make a decision. Instead, the committee looked to the private sector to develop better parental filters for blocking harmful content.

Across the country, the apprehended risks of the exposure of young people to porn are of more concern to civil society than to the political world. Associations of parents, pediatricians, sex therapists and support groups are loudly demanding that the state play its role.

In Ontario, Marilyn Evans, a mother, launched Parents Aware to alert her community to the problem. She said:

. . . children are landing on these sites where they find extreme, violent, and often illegal sexualized content. It is both dangerous and irresponsible of Canada not to implement age verification on pornographic websites when we have the technology to do so.

In Calgary, Jocelyn Monsma Selby, an addiction specialist, launched the initiative Connecting to Protect to warn people of the mental health dangers facing children and young people who view online porn.

In Chilliwack, British Columbia, Dr. Robert Lees is urging public institutions and businesses that provide free internet access to install software that blocks pornography. He has called on us, as legislators, to help him.

In Quebec, sex therapist Marie-Christine Pinel made some disturbing observations in her practice. She said:

I am seeing some destructive trends emerge: an upsurge in dominance relationships, performance anxiety that leads to pain on penetration and erectile dysfunction, and an explosion in the demand for genital cosmetic surgery, all of these issues are due to the influence of pornography.

Let’s get back to the bill. How do we ensure that commercial pornography platforms comply with these new rules? It is easy to identify the major players, but it is obviously very hard, if not impossible, to fine the thousands of small porn sites overseas. For that reason, clause 9 would authorize the Minister of Public Safety and Emergency Preparedness to ask internet service providers to take the necessary measures, such as, for example, blocking any offending porn sites. That is the ultimate punishment for a business: losing all of its customers in a given country.

In closing, I would like to touch on an issue that is on everyone’s mind, which is COVID-19. This terrible pandemic and the resulting lockdown have created winners and losers. The porn sites have benefited from increased traffic and a captive, at‑home audience. Visits to porn giant Pornhub have climbed 23% because of the lockdown and the companies’ decision to give temporary free access to its premium site.

We can presume that many young people have followed the trend and thus exposed themselves to all the dangers associated with repeatedly viewing violent or demeaning pornographic images. It’s time to hold distributors to account. I need your help, colleagues, to push forward this bill.

I need your help to protect our children. Thank you.

Certainly.

It is because there is a public safety impact in the bill, not only for children but also for women. It seemed, because of its power to investigate, that it was the best minister to be able to measure if porn sites, whether they be abroad, small or without the right material to find them, should be shut out. We think it’s the best minister to act, but obviously, there could be discussion on that matter.

Thank you for your question, Senator Housakos. In fact, you asked two. Of course, it is very difficult right now, without any legislation, to make pornographic websites criminally liable if they host content that sexually exploits minors or involves non-consensual acts. In his mandate letter, Minister Guilbeault is tasked with addressing this issue and giving pornographic websites 24 hours to take down illegal material. That is the first thing.

However, I want to ensure that children under the age of 18 can’t access this material at all. I think this is feasible because technology is advancing. The technology that I told you about exists. It’s possible to verify a person’s age while collecting as little private information about them as possible. We are now in a position to say that this is possible and that it is the pornographic websites that will have to pay for these intermediaries, these independent companies, to verify users’ age in a way that respects their privacy as much as possible. As you know, there are now companies that encrypt information. Of course, they have to be certified by the government to ensure that the pornographic websites are not collecting personal information about their clients. All of this can now be done in a matter of minutes.

You’re quite correct that this is all changing rapidly. However, based on my consultations with people in Great Britain and Australia, it is possible to move forward. In fact, we have no other choice, because, with the infamous parental filters, pornographic sites tell us that it is the responsibility of parents. Parents don’t always know that their children are going to those sites. Kids can do it from someone else’s phone. It’s very difficult to supervise, and it’s putting too much responsibility on them.

Yes, we need to act, and I don’t understand why our government still hasn’t done anything. I must acknowledge that this is a controversial area, and too many people tend to believe that this is a purely conservative issue. In my view, this can be a cross-party issue, because it’s about protecting children. Personally speaking, I come from the feminist movement, and many feminists are very concerned about the growing impact of pornography in terms of how it portrays women. The younger they are when boys and girls start to see pornography, the more this unequal portrayal seeps into their brains.

Even coming from different perspectives, we can nevertheless agree that we must protect children from literal brainwashing that can do real damage, perhaps not always, but it remains a risk factor.

Senator Cormier, thank you for this excellent question. I had to make difficult decisions. This is a private bill. By focusing on commercial pornography sites, we can have a better definition and state that we will use the Criminal Code to penalize pornography sites that fail to comply. However, if we try to police social media as a whole, we find perpetrators as well as young people sharing pornographic images, which makes it much harder to find one solution for all these problems. You know that in the case of sexting, for example, many police officers are now saying that it is not a good idea to criminalize children, even though the Criminal Code states that sexting may be a criminal act. Therefore, it is much more complicated and difficult to target social media as a whole.

Great Britain made a start by issuing a white paper on the potential harms that minors face on social media. Pornography is one negative aspect of social media, but there are others, including people encouraging suicide. I thought that in a private bill, which I have been working on for months with my excellent team, Mylène Alloto and To-Yen Tran, it was enough to go after 4.5 million commercial pornography sites, since they are for-profit companies, and that is why we can target them more easily.

That’s a very good question. Technology has helped pornography companies rake in huge profits, and it can also help us achieve what we want. Facial recognition is a very controversial technology that can only estimate a person’s age, not pinpoint it exactly. This particular issue really bothered me, which is why I spoke to age-verification providers and, in particular, an expert from Great Britain who has been working on this issue for two years. He told me that the technology exists to do this securely.

As you probably know, when age verification is done, the information can be encrypted. Only a portion of the information can be obtained on the browser. We are heading toward digital identification, which essentially means that we can have our own data on our cell phones and share some data, of our choosing, with a company that verifies age. The only data that will be accessible to the pornography site is a token that says, “I am over 18,” not the name or address. I can’t ignore these questions, but they exist for any verification. When you go to a gambling site, your credit card is checked. Equifax verifies your credit card. Equifax has all your personal information, such as your date of birth, your name, and so on. All this information is already out there. No one can claim that age verification can’t be done for a pornography site, when that same verification is done for online gambling and alcohol purchases, which means it is a double standard given the dangers of pornography.

Certainly. I remember when Senator Moodie introduced her bill, I thought about the fact that we were working on issues that were crossing.

In Australia it’s the eSafety Commissioner for children. It’s a more pointed commissioner, and it is not to say that a commissioner in Canada that is in charge of children could not intervene. However, I think a bill is essential because the website — the pornography sites — have to know that if they don’t control the age of the children —

Yes, but I don’t want to slow down proceedings.

I will continue in French. We absolutely have to pass a bill to stop these porn sites and make them criminally liable for not verifying users’ age. That is the change I want to see. Until now, these sites have had total immunity, which is incomprehensible. That is due to the fact that, back at the dawn of the internet, a choice was made to allow great freedom because unfettered freedom of expression was seen as essential. However, freedom of expression on sites like YouTube, which features singers, is not the same as complete freedom of expression for a porn site that does not restrict access by minors. This is not about preventing adults from visiting porn sites, but preventing minors from doing so is essential. The industry has exploded, and the law is not keeping pace. A children’s commissioner could undoubtedly help in that regard.