The last Parliament featured debate over several contentious Internet-related bills, notably streaming and news laws (Bills C-11 and C-18), online harms (Bill C-63) and Internet age verification and website blocking (Bill S-210). Bill S-210 fell below the radar screen for many months as it started in the Senate and received only cursory review in the House. The bill faced only a final vote in the House but it died with the election call. This week, the bill’s sponsor, Senator Julie Miville-Dechêne, wasted no time in bringing it back. Now Bill S-209, the bill starts from scratch in the Senate with the same basic framework but with some notable changes that address at least some of the concerns raised by the prior bill (a fulsome review of those concerns can be heard in a Law Bytes podcast I conducted with Senator Miville-Dechêne).

Bill S-209 creates an offence for any organization making available pornographic material to anyone under the age of 18 for commercial purposes. The penalty for doing so is $250,000 for the first offence and up to $500,000 for any subsequent offences. The previous bill used the term “sexually explicit material”, borrowing from the Criminal Code provision. This raised concerns as the definition in the Criminal Code is used in conjunction with other sexual crimes. The bill now features its own definition for pornographic material, which is defined as

“any photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, 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, but does not include child pornography as defined in subsection 163.1(1) of the Criminal Code.”

Organizations can rely on three potential defences:

1. The organization instituted a government-approved “prescribed age-verification or age estimation method” to limit access. There is a major global business of vendors that sell these technologies and who are vocal proponents of this kind of legislation.
2. The organization can make the case that there is “legitimate purpose related to science, medicine, education or the arts.”
3. The organization took steps required to limit access after having received a notification from the enforcement agency (likely the CRTC).

Note that Bill S-209 has expanded the scope of available technologies for implementation: while S-210 only included age verification, S-209 adds age estimation technologies. Age estimation may benefit from limiting the amount of data that needs to be collected from an individual, but it also suffers from inaccuracies. For example, using estimation to distinguish between a 17 and 18 year old is difficult for both humans and computers, yet the law depends upon it. Given the standard for highly effective technologies, age estimation technologies may not receive government approvals, leaving only age verification in place.

The government would determine through regulation what constitutes valid age verification or age estimation technologies. In doing so, the bill says it must ensure that the method:

(a) is highly effective;
(b) is operated by a third-party organization that deals at arm’s length from any organization making pornographic material available on the Internet for commercial purposes;
(c) maintains user privacy and protects user personal information;
(d) collects and uses personal information solely for age-verification or age-estimation purposes, except to the extent required by law;
(e) limits the collection of personal information to what is strictly necessary for the age verification or age estimation;
(f) destroys any personal information collected for age-verification or age-estimation purposes once the verification or estimation is completed; and
(g) generally complies with best practices in the fields of age verification and age estimation, as well as privacy protection.

This list is more expansive than the previous bill and it says that the government must ensure that it meets these requirements, not merely consider them. The list notably limits the technology providers to third parties, meaning that the sites themselves cannot operate the age verification system. It also requires the system to be “highly effective”, while the previous bill only required reliability. As noted above, age estimation may struggle to meet these standards.

The other big change to the bill is that it seeks to exclude search and other non-adult sites from its scope. A new Section 6 states:

For greater certainty, for the purpose of section 5, an organization that incidentally and not deliberately provides a service that is used to search for, transmit, download, store or access content on the Internet that is alleged to constitute pornographic material does not make available pornographic material on the Internet for commercial purposes.

Whether this provides sufficient certainty to the many sites potentially captured by the bill will require further study, but it is clear that there has been an effort to address some of the concerns raised by Bill S-210 (despite downplaying or dismissing those concerns during the legislative process).

Once captured by the law – sites that deliberately transmit pornographic materials to minors and do not use government-approved age verification or age estimation technologies – the enforcement side kicks in. The enforcement of the bill is left to the designated regulatory agency, which can issue notifications of violations to websites and services. Those notices can include the steps the agency wants followed to bring the site into compliance. This literally means the government via its regulatory agency will dictate to sites how they must interact with users to ensure no underage access. If the site fails to act as instructed within 20 days, the regulator can apply for a court order mandating that Canadian ISPs block the site from their subscribers. The regulator would be required to identify which ISPs are subject to the blocking order.

Bill S-209 is better than its predecessor as it seeks to exclude search and other incidental distribution, adopts a new standalone definition for pornographic materials, and sets a higher bar for the technology itself. Yet many concerns remain: the bill still envisions court ordered website blocking, including blocking access to lawful content by those entitled to access it. In fact, the bill expressly states that the effect of the blocking may “have the effect of preventing persons in Canada from being able to access material other than pornographic material made available by the organization.” Orders that knowingly block lawful content is certain to raise Charter of Rights challenges.

Moreover, there are still uncertainties about enforcement as well as about what is included and what isn’t (other bills rely on percentages for greater certainty). Bill S-209 still relies on technologies that raise both privacy and accuracy concerns and gets the government into the business of evaluating those technologies as well as determining what constitutes commercial distribution, particularly for free sites. The last bill raced through the House without extensive hearings, though it is apparent that some of the concerns raised in the public sphere were heard. This time, there must be extensive studies in both the House and Senate with a deeper understanding for implications, amendments, and alternatives.