Question Period Note: Illegal online content and Canada’s International Trade Obligations

Do Canada’s international trade obligations under CUSMA require it to grant immunity from criminal prosecution to internet service providers that make illegal content available online?

• We are aware of the extremely troubling media reports about certain online platforms and their adult content services.
• Sexual exploitation of children is a heinous crime, and the use of online services in this way is totally unacceptable to this Government. We are committed to the protection of children and the eradication of child pornography and of human trafficking.
• As my colleague the Minister of Heritage has said publicly, we plan to introduce legislation in 2021 that would provide substantial fines for companies that post illegal content online.
• To be clear, Canada is not, under CUSMA, required to grant immunity from criminal prosecution to internet service providers who make illegal content available online.
• Nothing in CUSMA prevents Canada from enacting or enforcing our criminal law relating to such content.
• Nor is Canada precluded from enacting any law necessary to uphold public morals, including measures intended to protect against online sex trafficking, sexual exploitation of children, and prostitution.

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 recent articles (CBC, NY Times), 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.

In addition to the question of whether Canada’s international trade obligations under CUSMA require it to grant immunity from criminal prosecution to internet service providers that make illegal content available online, 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.

CUSMA Chapter on Digital Trade

CUSMA Article 19.17 pertains to interactive computer services, which are systems that enable electronic access by multiple users to a computer service. The promotion of these services is vital to the growth of digital trade, and is particularly important for small and medium-sized enterprises.

To that end, CUSMA Parties have agreed not to treat a supplier or user of interactive computer services as an information content provider in determining liability for harms related to information stored or transmitted by the service. However, this in no way means that interactive computer services, including those with user-generated content, can escape prosecution or the application of Canada’s criminal law. To the contrary, CUSMA Article 19.17.4 specifically provides that “Nothing in this Article shall … be construed to prevent … a Party from enforcing any criminal law”.

In addition, CUSMA Parties may adopt any law or take any action, criminal or civil, necessary to protect public morals, including measures necessary to protect against online sex trafficking, sexual exploitation of children and prostitution.

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).

In addition, the federal Act Respecting the Mandatory Reporting of Internet Child Pornography by Persons Who Provide an Internet Service, contains reporting and data preservation requirements on those who provide an Internet service to the public (for example, access providers and content producers and hosts).

Challenges:

The investigation and prosecution of these types of cases are challenging since the accused and/or their services, victims and evidence may be located outside Canada. Even with a robust legal framework, like Canada’s, practical impediments make responding to these types of crimes challenging. However, CUSMA does not present any additional challenges or limit Canada’s ability to hold interactive computer service providers accountable.

None