Restricting a Young Person’s Online Access to Pornography

 Written by Stuart O’Connell (Barrister/Solicitor), Toronto.

There is a fantastic online safety ad created by the New Zealand government as part of its public awareness campaign, Keep It Real Online. The 2020 ad has rightly gone viral and is one of my all-time favourites. In it two adult film actors (played by Cassandra Woodhouse and Paris Theodosiou) arrive naked at the front door of a young teenager’s house and tell his stunned mother “Hiya …We just came over because your 14-year-old son has been watching us…online… . Online we just get to it, we never really talk about consent. …We usually perform for adults but your son’s just a kid.” The dumbfounded son emerges from inside the house holding his laptop. His shocked mother (hair wrapped in a towel) reels from the disclosure that her son has been accessing pornography from his computer, and from the fact that two nude people have come to her door to explain—with hilarious nonchalance—that the online pornographic scenarios they are part of are not necessarily representative of “how relationships actually work.”

 

New Zealand Government, Keep it Real—Pornography, online: Pornography : Keep It Real Online.


The add is undoubtedly important as the internet has become a tool for youth to learn about sex.  It may even be the primary resource used by youth to learn about sex [FN1].  While this in itself is not necessarily a bad thing, the accessing of pornography by youth can be.

 

Age-Verification Legislation Currently Before Canada’s Parliament

Proposed legislation introduced in the Senate (Bill S-210, An Act to restrict young persons’ online access to sexually explicit material) limits access to sexually explicit material available for commercial purposes by incentivizing porn sites to impose prescribed methods of age-verification.  These methods have yet to be determined.

The legislation makes it an offence for an organization to make sexually explicit material available on the internet to a person under 18 and bars an organization from claiming as a defence that it believed the person was at least 18 years old, that is, unless that organization protected access to the material through an approved age-verification method.

Essentially, the proposed legislation imposes a duty of care on porn sites.

An earlier version of this bill (Bill S-203) was introduced in 2020, passed in the Senate, but died on the Order Paper when the federal election was called.  The bill was reintroduced as Bill S-210 in November of 2021, albeit with some changes.  The scope of the regime was restricted and the intention of the legislation was further clarified.

Under the present bill, online pornography would remain accessible to all adult Canadians, subject to what would likely be an automated three- to five-minute age verification process.  France and Germany already have in place legislation blocking at least some porn sites which do not verify the age of their customers. The UK is in the process of drafting legislation that, if passed, will impose a duty of care on porn platforms, requiring them to implement age verification. [FN2] 

The sponsor of the proposed legislation, Senator Julie Miville-Dechêne, makes a good point: we do not allow children to buy cigarettes or lottery tickets in person but then not impose meaningful controls on purchasing these goods in the online space. [FN3] Having the internet user click on the landing page of a porn site to confirm that they are 18 years or older—as is currently the norm—is hardly an effective gate between pornography and youth.

Of serious concern is the legislation’s potential impact on personal privacy.  Adult Canadians who view pornography online (and present statistics suggest that there are many) are likely uneasy with the prospect of having to disclose identifying information that can be connected to their online pursuit of pornography.

While technological advances have resulted in age verification processes that do not involve personal identification, the legislation does not mandate any particular method of age-verification, leaving that to the Governor in Council (Cabinet) through the promulgation of regulations.  The use of regulations provides the legislation some flexibility to keep up with developing technologies (for instance, age estimation biometric technologies powered by machine-learning algorithms), as regulations are developed under a different process from legislation and are not made by Parliament.  However, having Parliament delegate the responsibility of determining the method for age verification answers the privacy concerns of many Canadian with ‘wait-and-see’. 

Collecting potentially identifying information from those adults who view lawful pornography must be kept to an absolute minimum and any information collected must be scrupulously protected.  In today’s world, data breaches have become commonplace.  The personal information should be destroyed immediately after it has served its purpose of age-verification.  While federal privacy law (PIPEDA) governs how the private sector organizations collect, use and disclose personal information in the course of commercial business, it would be prudent to revise Bill S-210 to include some additional and context-specific privacy safeguards.

Bill S-210 is currently being studied in committee in the Senate.  


About the author: Stuart O’Connell is a Toronto-based trial lawyer and PhD Candidate at Queen’s University, Kingston.

Linkedin          https://ca.linkedin.com/in/stuart-o-connell-6a4836b4

Email               oconnell-litigation@outlook.com


[FN1] A December 2019 report that revealed young New Zealanders use the internet as their first and primary tool to learn about sex.  The Guardian Newspaper ( 15 June 2020   ) “New Zealand government deploys nude 'porn actors' in web safety ad:  Government TV ad is latest in a series of striking public service announcements using humour to tackle tricky subjects”, online: < New Zealand government deploys nude 'porn actors' in web safety ad | New Zealand | The Guardian>.

[FN2] UNILAD, Poppy Bilderbeck (8 Feb 2022), online: <Pornography Sites To Introduce ‘Robust Checks’ Under New Laws (unilad.co.uk)>

[FN3] Hansard, online:< Debates, Issue 5 (November 30, 2021) (sencanada.ca)>.

Location: Toronto, ON, Canada

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