The return of mandated age verification legislation in the Senate – formerly Bill S-210 and now S-209 – has been working its way through a Senate committee with a wide range of witnesses appearing over the past two weeks. I wrote about the new bill in late May, noting that there were some improvements, including an exclusion of sites that “incidentally and not deliberately is used to search for, transmit, download, store or access content that is alleged to constitute pornographic material”. However, I argued that the bill still raised concerns, including the privacy implications of mandated age verification technologies and the establishment of website blocking requirements that would block access to lawful content in Canada. I will be appearing before the committee later this month, but discussion last week at committee merits immediate comment.

One of the many criticisms of the Bill S-210 focused on how it was overbroad, targeting not just pornography sites, but search, social media, and other sites where pornographic images might be accessed. The bill did not include a threshold or other limitation on its scope to narrow the bill specifically to those sites that primarily contain pornography. The new Bill S-209 seemed to address the issue with the exclusion noted above, as 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.

Section 5 creates the offence for making pornographic material available to a young person (Section 7 creates the defence of using age verification or age estimation technologies).

While that seemed intended to address the overbreadth concern, the bill’s sponsor, Senator Julie Miville-Dechêne, told the committee last week that the government is free to apply the age verification requirements – and presumably the site blocking orders – to any site, not just pornography sites. During the question and answer period, she stated:

Contrary to what was said yesterday by Ethical Capital Partners, Bill S-209 does not just target porn platforms like Pornhub. The bill leaves this decision to the government in Article 12, and the government will decide on the scope, so the government could decide to include social media like X in its choices.

Section 12 establishes the regulation-making power in the bill. In addition to some specifics on age verification technologies in Section 12(2), Section 12(1) states:

The Governor in Council may make regulations for carrying out the purposes and provisions of this Act, including regulations
(a) specifying the circumstances in which pornographic material is or is not to be regarded as made available for commercial purposes, including circumstances in which pornographic material made available free of charge is or is not to be regarded as made available for commercial purposes; and

(b) prescribing the age-verification and age-estimation methods referred to in subsection 7(1).


The Senator’s interpretation of this section is that the government is free to include whatever sites or services it wishes through the broad regulation making power so long as some pornographic material may be accessible on the site. Not only does this run counter to the expectations of many who read the new Section 6 as an effort to address concerns about overbreadth, but it is an explicit declaration from the bill’s sponsor that there are few limits on government power to require Internet sites to institute age verification requirements or face the prospect of mandated website blocking in Canada. Far from providing reassurance, it confirms that it grants government unprecedented power to condition access to lawful websites in Canada with age verification requirements under threat of penalties and potential court-ordered website blocking.

This must surely spark reconsideration of what is a dangerous bill that could require virtually all Canadians to submit to age verification requirements in order to access commonly used search, social media, and other sites. Beyond the obvious sites such as Google and Twitter, popular chat sites such as Reddit or even AI services that can be used to generate pornographic images may require age verification prior to use if Bill S-209 becomes law. If the sites or services refuse, the government could seek a website blocking order to require all major Canadian Internet providers to block access to the service in Canada. The vast majority of Canadians use these sites, creating a scenario whereby a foreign entity would gain access to everyone’s identification documents.

The government opposed Bill S-210 but it troublingly received wide support in the Senate and from the Conservatives, Bloc and NDP in the House. Given the enormous risks with Bill S-209 it should be opposed by all parties. The age verification system would require Canadians to send their documentation to third party providers, most located outside Canada, thereby raising privacy risks involving security breaches and limited application of Canadian privacy law. At a time when there is increased focus on data sovereignty, this directly undermines that objective. Further, the use of age estimation technologies don’t work for this case, invariably requiring escalation by mandating further personal information disclosures. To top it off, the website blocking of lawful content to those lawfully entitled to access it would surely spark constitutional challenges. Addressing child safety and online harms is important, but not when there are less invasive approaches that do not place the privacy and freedom of information rights of millions of Canadians at risk.