Moved second reading of Bill S-210, An Act to restrict young persons’ online access to sexually explicit material.

She said: Honourable senators, I rise today at second reading stage of Bill S-210, An Act to restrict young persons’ online access to sexually explicit material.

I introduced the initial version of this bill more than a year ago. The now-defunct Bill S-203 was passed in the Senate, which was a huge step forward. However, that bill died on the Order Paper when the election was called.

We used this long break to conduct more consultations and present a new and improved version of the bill. This bill restricts the scope of the regime and further clarifies the intentions.

I want to briefly remind you why I wanted to take action to protect minors, children who are accessing porn sites that are increasingly hardcore and extreme without being asked for proof of age.

There are reportedly close to 4 and a half million porn sites around the world. The ecosystem changed around 10 years ago when the platforms chose to use content uploaded by users and made that content free. In turn, this removed any barriers to accessing these sites.

Kids are first exposed to pornography at age 11, on average.

These free sites derive their income from advertisements and video games of a sexual nature that target young people. In Canada, 40% of high school boys have seen pornography online, 28% search for it at least once a day or once a week, and 7% of girls say they have watched it. That was before the pandemic. It is worse now.

Renowned pediatrician Megan Harrison, from the Children’s Hospital of Eastern Ontario, provided compelling testimony before the Senate Legal Committee. She said the following:

The developing brain is absolutely affected by the images that it sees. As they grow and develop, their brain continues to change at an impressive speed. Neuroplasticity is a process by which our brains create new neural networks and pathways, which means it is constantly optimizing itself. . . .

Neuroplasticity is at its highest in children and even more so in adolescents. This means that repeated behaviours, repeated images, repeated ideas and values that a brain sees and internalizes during childhood and adolescence can have lasting impacts, as compared to adults, where the brain might be less affected.

The pediatrician went on to say:

The teens I see who have accessed these sites either accidentally or on purpose — and it’s very, very easy to do and the images are very disturbing — have so much confusion about their bodies and what is expected of them sexually, what is normal, all sorts of things.

Quebec sexologist Marie-Christine Pinel also made troubling observations about young people in her practice. She said:

I am facing emerging and disastrous phenomena: a resurgence of domination, performance anxiety that generates pain on penetration and erectile dysfunction, an explosion of requests for cosmetic genital surgery; all linked to the influence of pornography.

Scientific research is making more and more worrisome connections between the consumption of pornography and the health or behaviour of young people. When adolescents frequently view pornography, it can lead to compulsive consumption, create unrealistic expectations about expected activities, generate fear and anxiety, damage their self-esteem by distorting their perception of their own bodies, cause symptoms of depression and impair social functioning.

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.

In total, 37% of online porn scenes depict violence against one or more women. This distorted view of sexuality can traumatize children and teens and damage their own self-image and their understanding of sexual relationships.

According to the Canadian Centre for Child Protection, and I quote:

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.

Just this week, in the U.K., the Children’s Commissioner was quoted saying that she had seen “the hugely damaging effects of porn on children, including a young girl who took her own life.” She added:

Kids are seeing things that warp what they think real sexual relationships are like. I’ve had girls say to me that during their first kiss with their boyfriend he’s tried to strangle her because he’s seen it on a porn video.

I have to say this disturbs me greatly. Despite the scandal uncovered a year ago, targeting MindGeek, a Montreal-based company, porn sites still do not verify the age of those who view their videos, even as sexual exploitation of children was uncovered on many platforms. For these platforms, it is a matter of competition, because losing customers, even minors, means fewer clicks and less revenue. This explains why porn platforms are apparently willing to implement age verification measures as long as they are imposed on the whole industry.

This is something government can do. Clearly, self-regulation has been a failure. Legal porn sites are supposed to be for adults only, but these platforms only ask users to check a box stating that they are 18. For all those reasons, we must resolve to control the access of minors to porn in the digital world as we do in the real world. Checking the age of users is a public health issue. Harm to children exposed to sexually explicit material is a real and urgent social concern.

Let’s talk about the bill before you. It is very focused. As stated in section 4, the objective is to protect the mental health of young people, and more broadly to protect Canadians, young people and women in particular, from the harmful repercussions of porn. It is a public safety issue. In section 5 the bill criminalized making sexually explicit material available to a minor for commercial purposes. The bill sets a maximum fine of $250,000 for a first offence. For those who might be concerned about the risk of censoring educational or artistic material, I want to be clear. It expressly states that sexually explicit material with a legitimate purpose related to science, medicine, education or the arts is not covered by this prohibition of the law. So there is no censorship or prudishness. I have always strongly defended the importance of comprehensive sex education in school.

In addition, case law shows that the term “sexually explicit material,” as used in the Criminal Code, cannot be applied to any nude scenes or tribal sexual contexts like has been mentioned in this house. In its Sharpe decision, the Supreme Court concluded explicit sexual activity refers to acts involving nudity or intimate sexual activity represented in a graphic and unambiguous fashion intended to cause sexual stimulation to some viewers.

The Superior Court of Ontario has also held that the proximity of the camera to the genital or anal region, the duration, the closeups and the importance of these images in a film are additional criteria that help define a porn video — that is one where the dominant feature is representation with a sexual purpose.

Who is targeted by this offence? In the prior wording of the bill, a company or an individual could be prosecuted for distributing porn material to minors without verifying age. However, this wording could have undesirable side effects, as was mentioned by some sex workers. In light of this, we have revised the scope of the offence to exclude individuals and only target organizations as defined in section 2 of the Criminal Code. The word “organization” includes corporate bodies, society companies, firms, partnerships or associations of persons created for a common purpose. They have an operational structure and hold themselves out to the public as such. This approach makes it possible to directly target commercial distributors of porn.

Another significant amendment will better protect the right of porn sites to a full defence. Under the revised bill, the power to send notices to offending sites is given to a designated authority and not to the minister. This should minimize the risk of political intervention.

If the platforms, whether Canadian or foreign, do not comply after a reasonable period of time, the designated authority can seek a court order to block the site in question. This is the most efficient enforcement mechanism against foreign websites. Blocking a site means ordering internet service providers, such as Bell or Vidéotron, to use any means at their disposal to prevent their customers from accessing the site. The result is a blocked URL address, domain name or IP address. Internet service providers have told us that this kind of blocking is perfectly feasible from a technical standpoint. They are already working with authorities to remove images of sexual exploitation of children that end up on their servers.

So the real question is how should websites check the age of their visitor before they access porn material. This is obviously the crux of the problem. The good news is that technological advances have now made it possible to securely verify the age of online customers. Because technology is constantly evolving, it seems wise to set out the parameters of age verification processes in regulations, so they are not included in my bill.

From the outset, experts agree that age checks should not be done by the porn sites themselves but by specialized third-party service providers. The precaution is essential to prevent porn sites from gaining access to their customers’ personal data. 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 retained 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.

The simple and fundamental purpose of this bill is to restore some consistency to the actions we are taking as a country to protect our children.

In the real world, people under 18 cannot go to the casino or buy lottery tickets. In the online world, they cannot do that either. It only makes sense.

In the real world, young people cannot buy alcohol or cigarettes. We do not allow them to do that online either. It only makes sense.

Some people seem to believe that even though young people cannot rent a pornographic movie in the real world, they should be able to click on a button and instantly have access to explicit pornographic material in the virtual world. That makes absolutely no sense.

In the past, three objections have been raised against legislation on age verification. Today, I humbly submit that they do not pass scrutiny.

First, it was argued that pornography is protected by guarantees of freedom of expression. That is a fact that no one is disputing, but that does not solve the problem.

In the real world, we limit minors from accessing pornographic material in a perfectly legal and defensible way. Why would such limits be unacceptable when they are applied on the internet?

Courts in Canada and elsewhere had no difficulty accepting the idea that we must protect our children from pornographic content by imposing reasonable limits on its distribution. This reasoning is based in part on the fact that pornography does not deserve the same level of protection as political discourse, for example.

Consider this excerpt from an article by Professor Cass Sunstein, the most quoted legal expert in the United States — a country that certainly does not take freedom of expression lightly. I quote:

The Court has drawn a distinction between speech that may be banned only on the basis of an extremely powerful showing of government interest, and speech that may be regulated on the basis of a far less powerful demonstration of harm. Commercial speech, labor speech, and possibly group libel, for example, fall within the category of “low-value” speech. . . .

Under this approach, or any plausible variation, regulation of pornography need not be justified according to standards applicable to political speech. The effect and intent of pornography, as it is defined here, are to produce sexual arousal, not in any sense to affect the course of self-government. . . .

These considerations suggest a conventional, two-stage argument for the regulation of pornography. First, pornography is entitled to only a lower level of first amendment solicitude. Under any standard, pornography is far afield from the kind of speech conventionally protected by the first amendment. Second, the harms produced by pornographic materials are sufficient to justify regulation.

The U.S. Supreme Court recognized that the state has an interest in safeguarding the physical and psychological well-being of minors and that that interest extends to protecting minors from the influence of pornography. The government can therefore regulate its distribution, provided that it does so narrowly without unnecessarily interfering with the right to freedom of speech.

Our own Supreme Court expressed support for this idea in its policy decision on this issue, as follows:

 . . . the kind of expression which is sought to be advanced does not stand on an equal footing with other kinds of expression which directly engage the “core” of the freedom of expression values. . . .

The infringement on freedom of expression is confined to a measure designed to prohibit the distribution of sexually explicit materials accompanied by violence, and those without violence that are degrading or dehumanizing.

As I have already concluded, this kind of expression lies far from the core of the guarantee of freedom of expression. It appeals only to the most base aspect of individual fulfilment, and it is primarily economically motivated.

In conclusion, although pornography is protected by freedom of expression guarantees, it should be relatively simple to justify reasonable regulations for very good reasons.

Under the bill before us, online pornography would remain accessible to all adult Canadians, subject to an automated three- to five-minute age verification process.

I’m not aware of any inalienable right to instant access to pornography anywhere, at any time, by anyone, that would be violated by this modest proposal.

Let’s keep in mind that freedom of expression is not an absolute right, but a right that, according to the Charter, is subject to such reasonable limits as can be justified in a free and democratic society. When we are called upon to balance the rights at stake, protecting the most vulnerable members of our society is crucial and should take precedence over causing a minor inconvenience.

With respect to privacy, the second objection we sometimes hear is that, while it is desirable in theory to regulate minors’ access to online pornography, the means proposed in practice are too broad and infringe on privacy rights. Once again, I humbly submit that this argument does not stand up to scrutiny.

First of all, consider how age verification works in the real world. Today, individuals suspected of being under 18 who want to buy cigarettes, alcohol, lottery tickets or pornographic magazines must show their face and ID to the store cashier. As far as I know, no one is seriously challenging that approach.

In the past, there have been legitimate concerns that providing personal information over the internet could expose people to identity theft or other forms of data exploitation. These are certainly valid concerns.

The good news is that technological advances have resulted in age verification processes that do not involve personal identification. In recent years, we have seen the development of effective, relatively unintrusive technology that provides the least restrictive means possible of protecting young people from the harms of online pornography. Nothing is ever perfect, of course, but privacy can be increasingly assured by data systems that are encrypted or destroyed by the age-verification providers.

As Privacy Commissioner Daniel Therrien said in committee, and I quote:

When it comes to privacy, the risk is generally not eliminated. You try to reduce it as much as possible. I think the structure of the bill is such that you can reduce the risk of privacy breaches without completely eliminating them.

As I mentioned earlier, the bill does not set out the acceptable forms of identification, leaving that to regulations. It is the only way to guarantee that our protections are consistent with best practices and emerging standards.

Then there is the famous parental responsibility. That is a topic I heard a lot about in presenting this bill. It may be the most important aspect. We were told that the responsibility for protecting minors from online pornography should fall to their parents. Again, that argument does not hold water.

Would Canadians like the sale of alcohol, cigarettes and gambling activities to be left to parental supervision only? Would Canadian parents like it if bars, casinos, and strip clubs simply required clients to click a button to enter? Of course not.

For years, we have left it up to parents to control minors’ access to online pornography. We know that this does not work. Many of us have experienced this with our own children. We should keep in mind that not every parent has the same level of digital literacy. If parental controls were working, we would know it, and I can assure you that we would not be here today to speak to this bill.

However, the evidence that the current approach is a failure is not just anecdotal.

A 2018 University of Oxford study suggests that internet filtering tools have practically no impact on the exposure of youth to online pornography, and it went so far as to question whether their limited usefulness justifies their cost.

The truth is that most parents have no idea what their children view on the internet, and they need our help.

A survey conducted by the Canadian Centre for Child Protection indicates that 60% of respondents are very worried about their children being exposed to pornographic or violent images. It is not just parents; pediatricians and specialists are concerned as well. Our many supporters include the Paediatric Society, the Canadian Academy of Child and Adolescent Psychiatry, the Association des pédiatres du Québec and several Canadian and international experts. They are all demanding that the government play its part.

In fact, other countries have already acted or are in the process of doing so to protect minors from this bombardment of pornographic images online.

France adopted legislation a year ago that allows the blocking of porn sites wherever they are in the world if they do not verify the age of their customers. The implementing decree is now in force and the Conseil supérieur de l’audiovisuel has the authority to request a blocking order from the court.

Germany is even further ahead and has begun the process of blocking access to the four biggest porn sites that have refused to ensure their customers are adults. We’re talking here about xHamster, YouPorn, Pornhub and MyDirtyHobby.

After a first failed attempt in the U.K., a joint parliamentary committee has just completed a pre-study of a draft bill called the Online Safety Bill, which should be tabled shortly. The new bill will impose a duty of care on porn platforms, requiring them to implement robust mechanisms such as age verification to ensure that children do not have access to harmful content.

Australia has adopted the most rigorous and ambitious approach to consultation and action. Last June, the Australian Parliament passed the Online Safety Act 2021. At the same time, age verification guidelines have been developed by the eSafety Commissioner, and an action plan for porn sites and social media is expected within the year.

Moreover, for those who might worry about setting a dangerous precedent, know that age checks are increasingly adopted around the world. In Japan, those who want to use the Tinder app must prove that they are of legal age. Fans of the popular Roblox game must do so as well. Facebook is exploring age-verification options for adult-only videos.

Another reason to act: Canada has ratified the Convention on the Rights of the Child and, as such, we must consider the United Nations alert regarding threats in the digital environment. As stated in a recent general comment, state parties should ensure that appropriate protections are in place to prevent children from accessing products that are harmful to them such as strong verification systems.

In closing, I want to express my gratitude for the strong support I have had over the past year for the principles underlying this bill. Despite the constraints related to COVID, we had real debate in the Senate. The predecessor Bill S-203 was praised, criticized in some respects and ultimately improved. The bill succeeded in passing the demanding test of committee study, where we heard from a dozen witnesses over about eight hours. I want to thank Senators Carignan, Cotter, Batters, Jaffer and Dalphond for their suggestions.

Outside the Senate, the initiative generated significant interest and we succeeded in bringing public attention to this threat to public health. Until we took action, the issue worried many parents but was not often discussed in Parliament. But that is the past; let’s look to the future.

Dear colleagues, I respectfully invite you to participate in the debate on the strengths and weaknesses of this new bill intended to protect children and young persons from the harms of pornography. We can discuss the modalities, but it is high time to act.

Certainly, Senator Simons.

Thank you for the question, Senator Simons. I will respond in French.

Just because the preamble states that the technology must be sophisticated doesn’t necessarily mean that it’s referring to using face-scanning technology to determine a person’s age.

All technologies are now possible, and a range of methods are generally included in the regulations. The use of digital identity technology is one possibility. There is a Canadian company called Bluink, whose technology allows users to input certain information on a cellphone, and these users only share the information when they want to, for example, when they must prove that they are over the age of 18. There are other methods, such as adding a token to a browser. It is obviously important for a third party to conduct the verification.

Nevertheless, we do not advocate for one specific method. The beauty of this bill is that, because verification technology is evolving so quickly, the regulations are the only way to make sure that the latest technologies and privacy protections are taken into account.

You’re right about that being an important element. I will say that the reason it now takes a second to erase or encrypt all the information collected is that a lot of progress has been made over the past few years.

Would the senator accept another question?

Certainly.

You just focused on an important point: that the efforts be technology agnostic so that we leave the door open for many different approaches. Specifically, would it be helpful if we started to see greater leadership in the federal government around the implementation of digital identity so that this could be done more swiftly and seamlessly across jurisdictions in the country and, seeing the ability to verify and limit the information you’re sharing, verify your age online?

Thank you for the question. I know that’s one of your major concerns. Digital identity is still in its infancy. Some companies offer the technology, but it isn’t very common.

However, it’s true that if it were to become a more widespread technology, there would most likely be less concern about what it enables us to do, which is control information shared with this or that company ourselves.

You and I both know that we share a lot of information every day. Why, then, if it takes just a few extra minutes to access a pornography site, would identity verification methods suddenly be seen as too great an imposition?

I believe that, at this point, technology enables us to be relatively secure in that regard. As you said, Senator Deacon, all these measures and all the protection they offer are set out in a bill that would regulate what’s required of companies with respect to erasing or encrypting data. All this could be covered by regulations, which do exist. However, we clearly need to enhance them and ensure that the system is appropriate for the 21st century.

Just to be clear, if the federal government started to show some leadership on the implementation of digital identity, it would be assisting the implementation of this work, correct? Thank you.

Senator Deacon, you are putting words in my mouth.

It is clear that the government should indeed show leadership. You know, as I do, that a bill on this issue died on the Order Paper. It is time to resume these efforts because we are lagging behind.

We are lagging behind on the issue of age verification because it is difficult for people to understand that these verifications can be done while minimizing the infringement of privacy.

Senator Miville-Dechêne, my question is more of a political nature. I must congratulate you on the work you have done over the last year, and the searchlight that has been shone on this issue, particularly on MindGeek and other pornography sites. I don’t know the answer to this question, but you may: Do you know if any political party included this particular issue in their policy platform during the last election?

That’s a good question, Senator Omidvar. I have to say that Steven Guilbeault, when he served as Minister of Canadian Heritage, publicly said that this was an interesting bill, but he didn’t go any further. As you know, he was very involved and busy with Bill C-10, so I didn’t have an opportunity to discuss it with him any more than that.

I think one of his concerns was that we shouldn’t focus only on porn sites, but that all social media and the internet had harmful material and that our view should be broader. Obviously, it makes sense, but from my point of view, with a private bill, I couldn’t just go straight to the internet as a whole. It was too complicated, so I focused on porn sites. To be frank, half of teenagers go on porn sites when they want to watch porn. It’s not something that’s not used.

I have support among MPs from different parties. What I find incredibly interesting with this particular bill is that it’s non-partisan. I have support among people with different ideologies and who are in different parties, because obviously you could be a feminist, or you could be a more conservative person and still want to protect children. The way we do that can be the same. I really think this support is important. But no, there was nothing in the political platforms on that. I’m very sorry about that.

Just to make a point on your last comment, you can be both a feminist and a more conservative person.

I understand the intent of the bill, and I agree with it. This would be a law that is obviously within the jurisdiction of Canada. With the prevalence and ease of use of virtual privacy networks, or VPNs, which can mask your IP address, how would you address that with respect to visiting any sites on the internet?

First, let me say that obviously you can be a feminist, progressive or conservative. Anybody can be a feminist. I’m sorry if I was not very clear in the way I articulated that. I just wanted to say how non-partisan this bill was and that people came from different places. There are quite a few Christians, for example, who support this bill.

Your question about the VPN is an excellent one. The studies show that among younger children — less than about 15% — 13‑year-olds have access to a VPN or know how one works. For younger children, this would not be a big problem because most of them often stumble upon porn or just don’t know how to use a VPN. It’s obviously an issue for older teenagers, but this bill doesn’t pretend to stop everybody everywhere from watching porn. It’s like when one buys cigarettes. We know a child can buy them themselves, or they can ask an older boy to go and buy cigarettes for them. It’s the same thing for alcohol. The idea is to try to restrict access to porn as much as we can.