Most people agree with the goal of protecting children from the harms associated with increased exposure to internet pornography. The Criminal Justice Section of the Canadian Bar Association, in a letter to the Senate Committee on Legal and Constitutional Affairs, expresses general support for Bill S-210, An Act to restrict young persons’ online access to sexually explicit material, but shares a few concerns with the way the Bill is drafted. Those concerns, and suggestions for improvements, are summarized below.
Age limit
The age of sexual consent in Canada is 16. The Criminal Code allows children as young as 12 to engage in sexual activity in some circumstances. Bill S-210 wants to prohibit persons under the age of 18 from having access to online pornography. It is “discordant with the Code’s overall legislative scheme to permit an older young person to engage in sexual activity while making it simultaneously illegal to distribute documents depicting sexual activity to those same young persons,” the Section says, adding Bill S-210 should instead prevent organizations from distributing online pornography to young people under the age of 16.
“Legitimate purpose” defence is overly broad and subjective
Bill S-210 makes exceptions for material that has a “legitimate” purpose related to science, medicine, education or the arts. The CBA Section has concerns about this language, calling it confusing and overbroad.
“For example, in many instances a document can be both artistic and pornographic. And if it is both, determining whether it is also “legitimate” may be an entirely subjective inquiry. This interplay leaves the public with little or no notice of which precise conduct is defensible by the act,” it writes.
Subsection 6(2) of the Bill should be amended to say, clearly, that “the legitimate purpose defence could never apply to the transmission, for the entertainment or sexual gratification of the viewer, of pornographic material depicting sexually abusive behaviour.”
Privacy
The Bill intends to force pornography distributors to implement better age verification methods on their websites. But as the CBA Section points out, it contains no specifics on how those methods can balance protection and respect for privacy rights of persons who access those sites legally.
“Age-verification requirements may authorize the Canadian government to either collect or supervise the collection of private and sensitive information,” it writes. “An obvious by-product of such age-verification measures would be the creation of a data set that links personal identifying data to data revealing that an individual accessed internet pornography as well as the specific sexual proclivities and interests of that individual.”
To prevent this misuse of data, the Section strongly recommend Bill S-210 be amended to include adequate privacy safeguards.