Evidence of meeting #18 for Access to Information, Privacy and Ethics in the 43rd Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was video.
A video is available from Parliament.
1:25 p.m.
As an Individual
Thank you. I appreciate that.
I would like to continue to be updated on how the laws are changing, on what that will basically demand Pornhub and MindGeek to do, and on what that will basically entail for them to follow. I'm not very updated. I don't have a lot of knowledge on laws.
1:25 p.m.
Conservative
1:25 p.m.
NDP
Charlie Angus NDP Timmins—James Bay, ON
Thank you.
Ms. Fleites and Mr. Bowe, I want to thank you so much for your extraordinary testimony and for what you've done by coming forward as witnesses. It was you who put Pornhub on the run. It wasn't the big MasterCard and Visa. It was your willingness to be a voice and to step forward. To follow up from my colleague Madame Gaudreau, we thank you for your courage.
As to why we are here, it might seem like a bunch of people on a screen asking strange questions, but this is how we make laws in our country. We get witness testimony. You tell us that you're not an expert in laws. Well, you are helping to shape the laws of the future to protect other survivors. Your testimony is so important to us today, because we are going to take action. We are going to hold these guys to account. That is our job as legislators and as parents, because the system failed you.
You've given us so much. I won't make you repeat all the amazing things you said, but I was really struck by what you said about how they hassled you when you, as a child, were trying to get control of your life again from the exploitation, from the criminal acts that were done to you. They, as a massive corporation, hassled you.
Could you explain to me what that means? What do you think we should make them do so that they don't hassle any other young women anywhere in the world?
1:25 p.m.
As an Individual
Basically, when the videos were first uploaded online and I didn't want to tell my mom about them—and I pretended to be my mom—they would say, like, “Oh, well, it's not actually you in the video, so to provide proof that's your daughter and that she's underage, you're going to have to provide....” like, pictures of me next to some sort of identification. They would ask for all these different things. Even after I sent one picture next to whatever identification they asked for, they would ask for another picture next to a different sort of identification, and so on and so forth. They were just dragging out the process for so long even though it was very obvious it was a child in the video. Even if, say, it wasn't me in the video, they could still tell that was a child in the video, yet they were still dragging out this process. They didn't want to take the video down because it had, at that point, millions of views. It was bringing them ad revenue and clicks to their site. It would be at the top of Google for the searches.
It amazes me that they continue to do that even after hearing that so many other people went through this and knowing that I wasn't the only one they would do this to. I don't understand how they can be okay with it and how they can sit here and think, “Okay, well, this isn't the girl in the video, or I'm going to make her prove over and over and over again that it is her in the video, even though we can see it's child pornography. We're just going to make sure it's she who wants it taken down before we take it down”, even though they should have just taken it down because it was child pornography.
1:30 p.m.
NDP
Charlie Angus NDP Timmins—James Bay, ON
Thank you.
I'm going to ask Mr. Bowe about this. If MindGeek is promoting a video that says “13-year-old girl” or “14-year-old-girl”, in Canada, we have very strong child pornography legislation and it's anyone under 18. The fact that the corporate response to this young woman, this child, was that they didn't believe she was the one in the video or they didn't believe she was the mother—she was pretending to be her own mother—the fact that they would have to go through that level of proof, when what they were promoting was criminal behaviour....
Do you believe, under American law or under Canadian law—we are looking at Canadian law—that they are criminally liable for the fact that they were aware and they were promoting child pornography online to their viewers for monetization?
1:30 p.m.
Lawyer, Brown Rudnick LLP, As an Individual
Yes. I think this is something where the law can be improved upon, because the law was written before the Internet Tube sites. But I have no question that under American law there are criminal violations here.
For example, I raised section 2257 for a reason. It's so basic. Before the Internet, the American law required that if you were going to produce pornographic material, explicit material, you had to have paperwork showing that the person was of age and that it was consensual, and you had to keep the paperwork. Then, if you were going to send it and give it to somebody to sell, broadcast or whatever, you had to have a disclaimer on it that showed “This is what I did and here is where you can find the paperwork.”
The point is that it was the responsibility of the people producing it to make sure that it was consensual, and if you were going to distribute it, transfer it or show it, you had to make sure that that person had made sure. That is common sense. It wasn't controversial when it was enacted way back in the nineties. I think we should all agree on it now.
But the default in this industry is that it's consensual and adult until you prove otherwise, which shouldn't be the standard, can't possibly be an effective standard and I don't think actually is the standard. Lawyers could argue over which aspects of MindGeek's business section 2257 applies to and which it doesn't, but it clearly applies to transferring pornographic material.
When a person uploads to Pornhub, perhaps lawyers could argue that Pornhub is just receiving the information, and under the various definitions that were there before Tube sites, lawyers could argue whether section 2257 applies to them at that point. I think it does, but there's an argument, and that's why legislators should probably update that law.
But they almost immediately then take that content from Pornhub and push it out to their other sites, which clearly falls under section 2257, in my view. They don't have the required documents, and there is no disclaimer on that material.
So this entire industry.... One of the members asked about the process. I've been a lawyer for 30 years. [Technical difficulty—Editor] I have never seen a situation where there was so much disregard for and indifference to what was obviously child pornography, rape, trafficking content—illegal content—on this site. There was no process.
That's why this issue of gaslighting is so important to me. This entire year, if you were simply listening to the public pronouncements of MindGeek, of its agents in its network of performers and otherwise, of its allies in the industry, you would think they have all this process and all this technology and that this stuff is just mistakes that were made.
I'm telling you that when we're done and the proof comes out.... If you're able to do the type of investigation we've done, you will find out that this is just a bunch of BS. There was no process.
The moderators—
February 1st, 2021 / 1:35 p.m.
NDP
Charlie Angus NDP Timmins—James Bay, ON
I'm sorry. This is really important. I think we're going to have to draw you back as a witness on this, but I'll defer to the chair on that.
Section 162(1) of the Criminal Code in Canada says it is illegal to record or film a person who has “a reasonable expectation of privacy”. It is an offence to distribute such content or possess such content. It is an offence to distribute if the person did not consent. That leads us into section 163, about the distribution of child pornography.
These are the laws. We also have a law from 2011 on the obligations of ISPs to report flagged examples of child pornography, and yet we have Ms. Fleites raising known issues of child pornography and being told, “Prove it to us before we do anything.”
I just want to ask you, with my time left.... I'm going to read one other statement. It's from Pornhub's terms of reference. Pornhub claims:
The Websites take a powerful stand against any form of child exploitation or human trafficking. If we discover that any Content involves underage individuals or any form of force, fraud, or coercion, we will remove the Content and submit a report to the proper law enforcement authorities. If you become aware of any such Content, you agree to report it to the Websites by contacting legal@pornhub.com.
I would end with a simple question for Ms. Fleites and Mr. Bowe. Is that promise made by Pornhub worth the paper it's printed on?
Ms. Fleites.
1:35 p.m.
As an Individual
No. As the study shows, Pornhub reported only so many accounts of child pornography being on their site, and they always try to shift the responsibility from themselves to the people who are uploading the content, when it's their site. They should require people to verify their age and verify who they are and that they're actually the people in the video before it can be uploaded, instead of just letting whatever be uploaded and then downloaded from their site, and then, oops, now that it's flagged as child pornography we're going to make people prove it's child pornography before we actually do something.
At the end of the day, they really don't want to remove the videos. In reality, their whole process should have been, from the beginning, having people verify their age and identity before the video can even be uploaded. So I don't think their promise is worth the paper at all.
1:35 p.m.
NDP
Charlie Angus NDP Timmins—James Bay, ON
Mr. Bowe, should we take them at their word, that if these issues are identified, they will take action?
1:40 p.m.
Lawyer, Brown Rudnick LLP, As an Individual
Those statements are categorically lies; they just are. “If you discover”, “if we discover”.... What do they mean by “discover”? Does someone have to come in and get a judgment and prove something because you can't believe your eyes? Does it mean victims can't come in and tell them these things? “If we discover”—no.
Look, they have said.... I emphasize this because it tells you the company you're dealing with. You are dealing with a rogue company. You don't know who owns it; I don't know who owns it; no one really knows who owns it. Its behaviour here is completely out of bounds. It's just in a different universe from the way even bad mainstream corporate citizens work.
Those statutes that you cited...I have no doubt. We have analogues in the U.S. Lawyers can argue about exactly where they apply and in what aspects, but they clearly apply.
For example, MindGeek has servers in the United States; I believe it has servers in Canada. I believe those servers have been among the largest, if not the largest, repositories of child pornography in North America.
1:40 p.m.
Conservative
The Chair Conservative Chris Warkentin
Thank you, colleagues. I apologize that the time got away on us, but Mr. Angus, I wanted you to finish those questions, because we had many colleagues who stated that in fact they wanted answers to those questions.
1:40 p.m.
Conservative
The Chair Conservative Chris Warkentin
I also know that some of you, colleagues, need to leave now; I appreciate that we've gone over time in a significant way.
Ms. Fleites and Mr. Bowe, thank you for your testimony. Thank you for your patience with the technology.
We look forward to continuing in this study. We hope we can rely on both of you, maybe, in the future as well. I know that committee members have already indicated they'd like to continue a dialogue with you on a number of fronts.
Mr. Angus, I'll recognize you.
1:40 p.m.
NDP
Charlie Angus NDP Timmins—James Bay, ON
I'm sorry to interrupt, Chair.
I just wanted to ask Mr. Bowe, as we're beginning this study.... This is very new terrain for us. We have a number of powers, as a parliamentary committee, for summoning witnesses, for obtaining documents, for production of documents. If there are areas that you believe we should be looking at, would you be willing to share that information with our clerk so that we are better prepared to undertake a thorough investigation? This will be about bringing to Parliament suggested changes in the laws, if we find that there has been an absolute failure, and it looks very concerning to us right now.
1:40 p.m.
Conservative
The Chair Conservative Chris Warkentin
Thank you so much, colleagues.
We'll turn to Mr. Viersen. I see that he's indicating that he has a question.
1:40 p.m.
Conservative
Arnold Viersen Conservative Peace River—Westlock, AB
This is for Mr. Bowe.
We have invited Feras Antoon and David Tassillo to our committee. We're hoping that they make an appearance. Those are some of the executives of MindGeek whom we've been able to track down.
Is this your understanding as well? Are those the people we should be after? Or are there other executives as well whom we may have missed?
1:40 p.m.
Lawyer, Brown Rudnick LLP, As an Individual
I think you need to speak to a gentleman named Corey Urman, who's there. I think you need to talk to those individuals about who actually owns the company, in what form, and from whom they take direction.
I know these people have been publicly fronted as owners. I suppose there are different ways you could call someone an owner, but our information, and other public information, is that the people who are the beneficial owners, the people who control this company, who really hold the economics, are not known. In this situation, they need to be known, because I don't think the gentlemen you spoke about are the ultimate word on how this company is run.