There are many reasons to be concerned about Bill S-210, the mandated age verification bill that raises significant privacy and freedom of expression risks and which is being improbably backed by Conservative MPs. The bill would mandate age verification technologies that the Privacy Commissioner of Canada says creates concern given missing safeguards, it establishes website blocking that government officials warn could undermine net neutrality and an open Internet, and its broad scope goes beyond pornography websites to include search and social media. But beyond those concerns, government officials have now zeroed in another problem: the definition of “sexually explicit material” used in the bill effectively captures streaming services such as Netflix, Crave, Prime, and CBC Gem. As a result, watching a show such as Game of Thrones or some episodes of Curb Your Enthusiasm on a cable or satellite package comes only with a rating and warning, whereas streaming it via Crave would involve a mandated age verification process.

During a committee hearing earlier this week, Conservative MP Garnett Genuis seemed to think that the rules would apply equally both online and offline, yet that represents a fundamental misunderstanding of both Bill S-210 and the Criminal Code. Genuis stated:

On the issues with section 171, I’m looking at the Criminal Code and trying to understand the argument here. We have one definition of sexually explicit material in the Criminal Code. Implicitly, it’s being suggested that maybe we could have multiple different definitions of sexually explicit material operating at the same time. However, it seems eminently logical that you would have one definition that relies on the existing jurisprudence. As Mr. Bittle has suggested, if this definition covers Game of Thrones, then it’s already a problem because it already violates the Criminal Code if, in the commission of another offence, you were to show a child that material. Therefore, you already could run afoul of the Criminal Code if you put on Game of Thrones in your home for your 16-year-old. That’s not happening. No one’s getting arrested and going to jail because they let their 16-year-old watch Game of Thrones. If that’s not happening already off line, then maybe that suggests that this extensive reinterpretation of what the existing law already says is a little bit exaggerated.

Actually, if Genuis is looking at the Criminal Code, he needs to look again. This posts seeks to explain why the government is correct to identify the risks that the bill poses to Internet streaming services, which may be forced to require millions of Canadians to verify their age should the bill become law.

Bill S-210 uses the Criminal Code definition of sexually explicit material at Section 171.1(1):

sexually explicit material means sexually explicit material as defined for the purpose of subsection 171.‍1(1) of the Criminal Code.

It then states at Section 5 that “any organization that, for commercial purposes, makes available sexually explicit material on the Internet to a young person is guilty of an offence.” There is a defence available “if the act that is alleged to constitute the offence has a legitimate purpose related to science, medicine, education or the arts.”

First, let’s unpack why the use of the Criminal Code definition is overbroad in the context of Bill S-210. The Criminal Code definition states:

(5) In subsection (1), sexually explicit material means material that is not child pornography, as defined in subsection 163.1(1), and that is

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(i) that shows a person who is engaged in or is depicted as engaged in explicit sexual activity, or

(ii) 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;

(b) written material whose dominant characteristic is the description, for a sexual purpose, of explicit sexual activity with a person; or

(c) an audio recording whose dominant characteristic is the description, presentation or representation, for a sexual purpose, of explicit sexual activity with a person.

This is obviously very broad: a photo of topless model in a suggestive pose is plainly covered as are written or audio materials describing sexual activity. But the definition does not operate alone. Rather, Subsection 171.‍1(1) provides the specific ways that transmitting sexually explicit material may violate the Criminal Code:

171.1 (1) Every person commits an offence who transmits, makes available, distributes or sells sexually explicit material to

(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);

(b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to that person; or

(c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.

All of this describes the use of sexually explicit material within the context of other sexual related crimes. These include exposure, procuring sexual activity, permitting underage sexual activity, incest, child pornography trafficking underage persons, and several prostitution provisions. In other words, it is not a crime to transmit sexually explicit material on its own. Contrary to Genuis’ claim, you cannot run afoul of the Criminal Code merely for putting Game of Thrones on in your home for a 16 year old. It only may become a crime when committed as part of other sexual related crimes.

For a bill that purports to create an equivalency between offline and online, using this definition in the context of Bill S-210 ironically has the effect of establishing age verification requirements for streamed content where none exist for the same content in the conventional broadcast world. The way that Canada seeks to limit access to such broadcasts is not the Criminal Code or blanket liability on the provider, but rather through CRTC backed content standards, which leads to the rating system.

As noted above, there is a defence in Bill S-210 that would cover making available sexually explicit material for a legitimate purpose such as the arts. But the willingness of a service to rely on that exception – essentially admit that it has streamed sexually explicit content in violation of the law but that it has a legitimate purpose defence – is very unlikely. The penalties associated with Bill S-210 are significant and even include website blocking. To risk being blocked by Canadian ISPs and face huge penalties if the interpretation of legitimate purpose does not cover their particular content is something that no service would entertain.

Further, after months of arguing against the CRTC engaging in content regulation under Bill C-11, it is stunning to see the Conservatives effectively embrace it doing precisely that in Bill S-210, where the CRTC or some other government appointed bureaucracy might be asked to determine what is caught by the provision and what qualifies for the legitimate purpose exception. Is the party that spent months arguing against the CRTC making content rulings really now saying it should do exactly that? If Bill S-210 wants to cover clear cases of pornography, it needs its own definition, not an ill-suited Criminal Code definition. As it currently stands, if the bill passes, the Conservatives will have gone from the party that campaigned against a Netflix tax to the one that wants to require Canadians to risk their privacy by verifying their age in order to watch it. And to paraphrase Larry David, that is not pretty, pretty, pretty good.