Standing Committee on Access to Information, Privacy and Ethics - Protection of Privacy and Reputation on Platforms such as Pornhub - April 12, 2021

Executive summary

You are scheduled to appear before the House of Commons Standing Committee on Access to Information, Privacy and Ethics as part of the Committee’s study on “Protection of Privacy and Reputation on Platforms such as Pornhub,” on April 12, 2021. The Minister of Public Safety and Emergency Preparedness, the Commissioner of the Royal Canadian Mounted Police and the Director of the Public Prosecution Service of Canada will also appear at the same time.

The application of Canadian law to companies providing Internet services in multiple jurisdictions is complicated, and not a settled area of the law.

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

The independence of police and prosecutors is a key principle in Canada’s justice system and underpins the rule of law.

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Issue

You are scheduled to appear before the House of Commons Standing Committee on Access to Information, Privacy and Ethics (ETHI) as part of the Committee’s study on “Protection of Privacy and Reputation on Platforms such as Pornhub,” on April 12, 2021. The Minister of Public Safety and Emergency Preparedness, the Commissioner of the Royal Canadian Mounted Police (RCMP) and the Director of the Public Prosecution Service of Canada will also appear at the same time. This briefing note provides information concerning child pornography and online exploitation, current enforcement challenges and ongoing work to address these issues. Opening remarks for your committee appearance are attached (Annex 1).

Background

The ETHI committee has held four meetings so far on this subject. A summary of these meetings is attached (Annex 2). Justice participated in the most recent meeting on February 22, 2021. Although Justice was invited to speak to the adequacy of the applicable criminal laws, the bulk of questions were directed primarily to the RCMP regarding enforcement of the existing criminal law and led to the Committee’s request for your joint appearances:

That, pursuant to Standing Order 108(3), and in light of the testimony from representatives of the Royal Canadian Mounted Police at committee on February 22, 2021, and the apparent lack of enforcement of Canadian laws relating to issues of possession and dissemination of child pornography as well as the posting of non- consensual sexual acts on Canadian Internet services, that the committee immediately call Public Safety Minister, Bill Blair, and Justice Minister David Lametti, Brenda Lucki, Commissioner of the Royal Canadian Mounted Police and Kathleen Roussel, Director of Public Prosecutions, to appear and explain his government's position on enforcement of Canadian laws relating to the non-consensual abuse of both children and adults on online platforms.

Mandatory Reporting Act

In 2011, Parliament enacted an Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service (referred to as the Mandatory Reporting Act or MRA). The MRA is a federal criminal statute that places obligations on those who provide an Internet service to the public, for example, access providers and content producers and hosts. It requires them to report to the Canadian Centre for Child Protection (C3P, which oversees Cybertip.ca – Canada’s anonymous tipline for online child sexual exploitation material) 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. Additional information relating to the MRA can be found in Annex 3.

Pornhub is an online adult entertainment platform owned by MindGeek Europe. Parliamentarians wrote to you on November 25, 2020, asking for government action against Pornhub and Mindgeek, alleging that these companies host and profit from child pornography and other sex crimes, and related concerns have been raised in news reports. Following a December 4, 2020 New York Times article, MindGeek changed its practices. During its February 5, 2021 testimony before the ETHI Committee, MindGeek indicated it now reviews user content before content gets posted and requires user identification before content can be uploaded to the site.

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The type of conduct identified in news reports is prohibited by specific and general offences in the Criminal Code. In relation to child pornography, the Criminal Code prohibits all forms of making, distributing, transmitting, making available, accessing, selling, advertising, exporting/importing as well as possession for these purposes. It also prohibits simple possession of child pornography. Annex 5 provides additional information relating to the Criminal Code.

International cooperation and legal frameworks

The challenges Canada faces in effective law enforcement for matters involving cross-border activities and evidence is shared by all countries arising from the pervasive and global nature of technology and the multi-national character of industry. Canada’s Mutual Legal Assistance in Criminal Matters Act provides a broad legal framework for cooperation between states in the investigation and prosecution of crime, which operates in conjunction with numerous bilateral and multilateral treaties (these include the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography;the Convention against Transnational Organized Crime and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children;and the Council of Europe Convention on Cybercrime). However the current framework struggles to keep pace with the impact of global technological innovations. Addressing these issues is the focus of a number of international efforts. A key initiative is the U.S. Clarifying Lawful Overseas Use of Data (CLOUD) Act. [Redacted]. There is also the ongoing negotiation of a second Additional Protocol tothe Council of Europe Convention on Cybercrime in which Canada is participating, the Five Country Ministerial and Quintet of Attorneys General work on the Voluntary Principles for Digital Industry to address child sexual abuse and exploitation content on their networks, and the international statement on encryption, which calls on companies to address the problems posed by increasing use of end-to-end encryption, in particular for investigations of child sexual exploitation on their networks, and was endorsed by Canada, the United Kingdom, Australia, the U.S., New Zealand, Japan and India.

Considerations

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Online Harms Initiative

Your opening remarks note that the Government has committed to take action to address online harms including hate speech and child sexual exploitation. The work in support of this commitment is being led by the Minister of Canadian Heritage with your support and that of Ministers Champagne and Blair. The Prime Minister reiterated this commitment during Question Period on February 3, 2021, in response to a question by the Leader of the Opposition following MindGeek’s testimony before ETHI. The Prime Minister underlined that hate speech, terrorism, child exploitation and other illegal acts would be addressed both through cooperation with international partners and through tools to go after companies and individuals.      [Redacted]     

Quebec Committee Report

On December 3, 2020, the Quebec Select Committee on the Sexual Exploitation of Minors released a report including a list of recommendations, including recommending amendments to the definitions of “place”, “public place” and “any place” in the Criminal Code to include private or public cyberspace. According to the report, this change would extend relevant Criminal Code offences to cyberspace to address jurisdictional issues.      [Redacted]     

Conclusion

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