Question Period Note: Liability of online platforms (child pornography)

Criminal and civil liability regimes that would apply to online platforms relating to illegal content.

• Recent media reports relating to some online platforms and their adult content services are extremely troubling.
• Sexual exploitation of children is a heinous crime, and the use of online services in this way is totally unacceptable.
• The Government is committed to the protection of children and the eradication of child pornography and of human trafficking. We continue to support police and prosecutors in the investigation and enforcement of criminal offences.
• As my colleague the Minister of Heritage has said publicly, we also plan to introduce legislation in 2021 that would provide substantial fines for companies that post illegal content online.
• I am confident that the law provides remedies for addressing many of the issues raised in these reports. As well, the Government of Canada has been engaged with private industry to enhance their corporate responsibility in this regard.
• In addition to our domestic laws, Canada continues to work with our international partners to facilitate international cooperation in the investigation and prosecution of crimes, where often the victims, perpetrators, Internet services and evidence are spread out over multiple jurisdictions.

A group of Canadian Members of Parliament and Senators wrote to the Minister of Justice on November 25, 2020, asking for government action against Pornhub and Mindgeek, alleging the companies host and profit from child pornography and other sex crimes. In addition, on December 3, 2020, the Quebec Select Committee on the Sexual Exploitation of Minors released a report including a list of recommendations. Recommendation 35 urges amendments to the definitions of ‘place’, ‘public place’ and ‘any place’ in the Criminal Code to include private or public cyberspace.” The New York Times and the CBC have also recently reported on this issue.

Pornhub is an online adult entertainment platform owned by MindGeek. In addition to hosting commercial adult pornography, Pornhub allows users to upload amateur videos, and users are able to use filters to identify their preferred content; some categories include references to youth. As noted in the articles, victims of child sexual exploitation and abuse, whose exploitation and abuse were recorded, have found this material available on Pornhub and flagged the difficulties they faced in having the company remove this content. Mindgeek, which owns Pornhub, is a Luxembourg-registered private Canadian company based in Montreal with offices in Europe and the United States. According to Cybertip.ca, Canada’s 24/7 tip line for reporting child sexual exploitation material on the Internet, Mindgeek has never had any significant portion of its content stored in Canada. Mindgeek’s servers are primarily in the United States and in other countries, and it apparently regularly reports to the National Centre for Missing and Exploited Children, the American equivalent of the Canadian Centre for Child Protection.

Existing criminal law responses

Decisions as to whether to investigate alleged criminal conduct rest with the police of jurisdiction and decisions on whether to prosecute rest with the Crown.

The Criminal Code prohibits the publishing and/or selling of sexually explicit material relating to children in a comprehensive way (section 163.1 child pornography). It also prohibits voyeurism and the non-consensual distribution of intimate images, and there are also prohibitions relating to obscenity and hate propaganda (sections 162, 162.1, 163 and 318 and 319).

The Criminal Code also authorizes courts to order the seizure and forfeiture of specific material (for example, obscene material, child pornography, voyeuristic recordings) and its removal from computer systems in Canada (sections 164 and 164.1). These offences may apply to any person in Canada as well as a Canadian company that knowingly commits the offence. Offences of general application may also apply to the conduct identified in the November 25 letter of Parliamentarians, depending on the facts of the case, including the assault provisions (sections 265-268), the general and child-specific sexual assault provisions (including sections 151, 152, 153, 155, 160, and 271-273), uttering threats (section 264.1), the human trafficking offences (sections 279.01- 279.04) and extortion (section 346).

Criminal Code hate propaganda offences criminalize advocating or promoting genocide, inciting hatred against an identifiable group in a public place where such incitement is likely to lead to a breach of the peace, and willfully promoting hatred by communicating statements, other than in private conversation. The Criminal Code also authorizes courts to order the removal from computer systems of hate propaganda from a computer system (section 320.1), which suggests that a public place (which is not a defined term) should not be interpreted as excluding cyberspace.

Mandatory Reporting of Child Pornography

The federal Act Respecting the Mandatory Reporting of Internet Child Pornography by Persons Who Provide an Internet Service, requires those who provide an Internet service to the public (for example, access providers and content producers and hosts) to report: to Cybertip.ca if they are advised of an Internet address where child pornography may be available to the public; or to law enforcement if they have reasonable grounds to believe that their Internet service is being or has been used to commit a child pornography offence.

The service provider must also preserve all computer data related to the required notification for 21 days following the notification, and must not disclose that they have made a report or notification, or disclose the contents of the report or notification, if the disclosure could prejudice a criminal investigation, whether or not a criminal investigation has begun. The company may remove the content voluntarily pursuant to its terms of service, or may be ordered by the court to do so, pursuant to section164.1 of the Criminal Code.

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