Information & Ethics Committee on Feb. 19th, 2021

[Dr. Francis Fortin]

I completely agree.

The real problem is that platforms can make users agree to whatever they want. Obviously, someone who wants to upload content will agree to the terms of use, so a much tougher approach is definitely needed.

I've been seeing these kinds of cases for 20 years now, so I don't think relying on the industry to hold companies accountable is the way to go. Things are at the point now where a bit more coercion is needed.

I would like to say something else, if I may. The focus is on one company, in particular, but when I started in the field 20 years ago, it was a different company doing this very thing. It hasn't stopped. The company in question today is most likely in the wrong, but the entire industry needs a hard look.

Consideration has to be given to everything that's happening, and especially to victims, who are left to fend for themselves.

My apologies if I went on too long.

[The Chair, Conservative, Chris Warkentin]

No worries. We always run short on time.

Madam Gaudreau, we'll turn to you now for your round of questions.

[Marie-Hélène Gaudreau, Bloc, Laurentides—Labelle, QC]

Thank you, Mr. Chair.

I noticed Ms. Mickelwait had her hand up. I think she wanted to comment quickly. I'd like to give her a few moments so we can all hear her answer. Afterwards, I'll ask my questions.

[Laila Mickelwait]

Yes. I just thought this was a very important point.

Even after the major credit card companies disengaged from MindGeek, causing them to completely upend their business model and make these very recent changes that they should have made over a decade ago...they were driven by finances to make these changes now. Even so, David Tassillo came before this committee and said it was impossible for them to verify the consent of every single person featured in every single video.

In fact, their new terms are only about verifying the ID of the uploader. In many cases, the uploader is the trafficker. We have that in a class action lawsuit that was filed just a number of days ago. A man was verified into the Modelhub program, using his ID, but they didn't verify the 16-year-old who he was raping in the video and selling for MindGeek's profit. They got 35% off the sale of those videos.

Even to this day, David Tassillo has said it's impossible. It is not impossible. Is it easy? No, but it is possible. Not only is it possible; it's essential.

[Marie-Hélène Gaudreau, Bloc, Laurentides—Labelle, QC]

You just made a hugely important point, Ms. Mickelwait.

Clearly, changes are needed, and changing the requirements around ID verification is a matter of basic human rights. I'm actually ashamed that we had to take our cues from the financial companies. It's high time that we, the lawmakers, do something about this.

Some say that we have to change the laws, address the offences and make the necessary reforms; they say we have ample ways to do that. The fact remains that the system is extremely slow. Together, we can find solutions. We mustn't forget that this affects victims for the rest of their lives. As a responsible government, we need to find very targeted ways to help victims, who suffer for life.

Mr. Fortin, one of the things you recommend is to issue operating licences. Under such licences, companies would have to meet certain requirements and behave in a certain way. It's a bit like making people obtain a driver's licence before they can drive. That's where we are. Unfortunately, it's a bit late in the game, but I don't think it's ever too late.

Pornhub's terms of service mention the right to be forgotten. Those who are being victimized now are top of mind, but of course, we can examine how to prevent future victims, as well.

Are you familiar with the right to be forgotten? Is there anything helpful you can tell us about the subject? Are there things we should do to support or strengthen the right to be forgotten?

[Dr. Francis Fortin]

This is a major issue. I'm not an expert on the topic. However, legal experts could shed some light on it.

There are basically two approaches. In Europe, there's more support for the right to be forgotten, whereas in Canada and the United States, there's a little less support. On the North American side, there's a certain reluctance to have content removed. I don't want to go too much into it. I'll simply say that this barrier should be overcome through a fast process. We aren't talking about removing unfavourable information about a politician from a website. This argument is often used to deny the right to be forgotten.

In this case, we're talking about a form of re-victimization, where a victim browsing a site can't remove their personal and intimate information. I strongly believe that we should have a fast way to remove information of this nature, without necessarily opening Pandora's box by allowing people to remove unfavourable information. This requires significant legislative reform and it must be started.

[Marie-Hélène Gaudreau, Bloc, Laurentides—Labelle, QC]

I want to ask you another question.

We're talking about licences. Does this mean that, before making data fully accessible, we must be careful and make sure that everyone is taken care of? Before we give this right to websites, there would be rules to follow. I gather that either there are no rules or that the existing rules are totally insufficient. We must take urgent action to protect people's identities. In light of all the evidence before us, we're realizing that this is currently a lost cause, that it's impossible.

Do you agree that a reform regarding user identity is important, but that before allowing a website to access the personal information of its users, it should be required to obtain a licence, for example?

[Dr. Francis Fortin]

In simple terms, I'd say that running a site that manages this level of personal data on individuals is a privilege and that it shouldn't be a right.

[Marie-Hélène Gaudreau, Bloc, Laurentides—Labelle, QC]

Thank you.

Ms. Mickelwait, I also want to thank you for your response earlier.

[The Chair, Conservative, Chris Warkentin]

Thank you so much.

We'll turn to Mr. Angus.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you.

I want to thank the witnesses for taking part in these very important discussions.

Ms. Walker, I'm very interested in some of the recommendations you have brought forward. I think they're very helpful.

I feel that I always need to reiterate that it is not the role of this committee to investigate trafficking or issues of justice with women. We are the privacy committee, so we have a very specific focus, which is the non-consensual image and or whether or not the right of individuals to privacy, the quasi-constitutional right in Canada, has been violated by an organization, in this case Pornhub and MindGeek.

Ms. Walker, the issue of trafficking is important in terms of whether or not there is a clear connection between the sexual abuse of women and violence against women and how Pornhub has become a place where that abuse is repeated and magnified. In your work with the women's movement, would you say there is a direct link now between these kinds of videos that are being shown on Pornhub and the ongoing abuse of women victims of male violence?

[Megan Walker]

Absolutely, there's no question.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Would you say from your work with victim survivors that Pornhub would be aware of this?

[Megan Walker]

Absolutely.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you for that.

Mrs. Mickelwait, at this committee, new stuff happens every day—stuff I have never seen before in the history of all the committees I have been on for many years.

We got a letter today. Feras Antoon and David Tassillo wrote us a letter—a personal letter about you—to warn us. It's weird. It's about you, but then it's about someone named Benjamin Nolot, who, they say, is against legal pornography and “against same-sex marriage and women’s reproductive rights”.

Anyway, they sent us this letter prior to the committee meeting. I've never had people who are being investigated send us letters about people who are giving us witness testimony. Do you have anything to say about this letter we've received from the heads of MindGeek?

[Laila Mickelwait]

It's standard procedure for them to try to distract, to try to defame and to try to discredit those who are telling the truth about what is going on on their site.

I came before this committee and I gave you testimonies of survivors who've personally reached out to me. These are their words. I presented and will present to you everything I have said today, documented with screenshots, to prove that it's actually factually correct. These are not opinions. These are facts.

This is completely inexcusable by the CEO and the COO. Rather than taking responsibility for what they've done through the immortalization of countless victims' trauma.... You know, some victims say, “My trauma and my abuse will live on long after I'm dead.” The thought of that tortures them. Instead of taking responsibility, what the CEO and the COO do—and this is exactly what they've done for the past year and beyond—is try to attack, try to harass, try to quiet and try to silence advocates who are telling the truth about their site. That is unacceptable.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Is it the case that they're gaslighting you?

[Laila Mickelwait]

Absolutely.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you.

Ms. Walker, I read some of Pornhub's—I don't even know what to call them—tickertape issues, how they draw views on runaway teens, homeless teen abuse, teens destroyed and teens manipulated.

When I read subsection 163.1(3) of the Criminal Code, it looks to me like this is trafficking in child pornography. Mr. Tassillo, though, said I didn't understand the word “teen”. He said that normally, when you're using the English language, “teen” is used for someone 13 to 19 years old. We have 13-year-olds and 14-year-olds and 15-year-olds, and the word “teen” is in each of those words.

However, he said that in the adult entertainment world it actually means 18 to 25 or 18 to 27. He says it's understood that when you say “teen”—when you're talking about a “crying teen”, I guess, or “teen destroyed” or “stolen teen sex tape”—we would normally understand that as people who are legally able to consent and would be up to 27 years of age.

Given your work with victims and given your work with the law, would you say that's a correct or incorrect interpretation of what a teen represents?

[Megan Walker]

That's incorrect. When they advertise for teens, oftentimes they are teens under the age of 18. Also, the regular Joe or Josephine who is going to be clicking to watch it does not have an understanding that it would mean 18 or 19. That individual or individuals would have an understanding that it is a young girl.

The other point is, whether that woman or girl is over or under 18, in my experience, a number of women who have disclosed that they have been raped on video were not consenting either to the rape they endured or the posting of that rape publicly.

[Charlie Angus, NDP, Timmins—James Bay, ON]

I am going to have to wrap it up here, but my concern is that we have laws in Canada that are very strong, yet we have never had a prosecution against Pornhub or MindGeek for any of this. When Pornhub tells us that someone is there to watch every single video, that means every single video went up with knowing intention. If it was criminal in nature, that would meet the test of mens rea, the knowing of criminal acts. They couldn't say, “Well, it was posted and we didn't see it.”

Can you explain to us why we've never had a legal prosecution? I mean, we have laws. We have multiple witnesses coming forward and multiple victims. There are legal reporting requirements. Any time there is an issue of child abuse online, it has to be reported to the authorities. We don't know if that's happened with them, or we didn't get a clear answer. The non-consensual use of images seems to be criminal in nature if it's been raised, yet we've never had any criminal investigations in Canada.

Are our laws strong enough, or is there just a lack of will? What do you think that gap is in the regulatory framework?

[Megan Walker]

First of all, self-regulation means that the corporation that is perpetuating violence against women and child pornography is regulating and deciding which videos go through and which don't. In fact, very few don't. Self-regulation is a problem. In the U.K., in fact, they were trying to do something around age verification, and MindGeek joined the team and wanted to do self-regulation. They said they would self-regulate, and the entire verification process in the U.K. collapsed and the discussions ended. That's one huge problem.

The second thing is that the porn industry and MindGeek are very powerful. That's why I'd like to see a financial audit. We don't know where the tentacles of this octopus are. There are so many shell companies that may or may not have influence over others that could perhaps establish criminal intent.

This is why I am so grateful for this opportunity and for the committee to be looking at this, because it is exposing MindGeek. We have a mandatory requirement in Canada to report child abuse and child pornography, all of us. You've heard it today. This committee does have a requirement to send over to law enforcement the testimony and the witness statements, because they show that there is child pornography. I hope that we have you and others on this committee who are speaking about criminal intent and criminal legislation, and I hope you will follow through, whether it be this committee or the justice committee. We need to see our criminal laws enforced.

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Angus.

Two of our panellists have their hands up.

I'll turn to Ms. Mickelwait to begin with and then Monsieur Fortin to follow.

[Laila Mickelwait]

Thank you so much.

I think it's important to speak to this issue of complicity and knowing in the distribution of this kind of illegal content. I want to give the committee two brief examples, because I am a witness and I want to tell the committee the information that I have on hand and that I have documented as well.

There was, for example—one of many examples—a video of a girl. The title of the video was “School girl is Fucked in Forest”. The tags in the video said “CP” and “Not 18”. The uploader was “UASex”, which would stand for underage sex, for anybody who would be looking at that. In the comments, they actually indicated that the girl was in the ninth grade, that commenters knew who she was and that she was underage. Not only did Pornhub moderators or reviewers look at that video, look at the tags, look at the title, look at the uploader and then approve it, but they featured it. They advertised that video on the site, on the home page, to get more views and more clicks. That is the advertising of child sexual abuse material. I have numerous examples of that.

There is one other instance that was particularly egregious, which I was aware of this year, in 2020, of a very obviously prepubescent, underage girl being anally raped and tortured. She was screaming in the video. It was horrific. This video was uploaded three different times by three different users over a period of weeks. It was reported. The report was documented. It was not taken down. A number of days later, it was reported again. It was documented. It was reported. It was not taken down.

Finally, I facilitated the transfer of the link of this video to the FBI. The FBI then sent it to the National Center for Missing & Exploited Children, and finally they confirmed the video was underage and they made a demand to Pornhub to take it down. Pornhub finally took it down after weeks and tens of thousands of views with a download button so that a hundred million people a day had the opportunity to commit the federal crime of downloading that child sexual abuse material. Then, they left the title, the tags, the views and the link available still to be indexed on Google to continue to drive traffic to their site using that child's sexual abuse.

I have evidence of over 75 such instances, in which you can see that the video was confirmed as child sexual abuse and it was asked to be removed by NCMEC, but they left the data of the videos live on the site even with titles such as “Boy Masturbating Before School”, “She's So Tight” and things like that. It's obviously CSA. That's knowing distribution. That's knowing advertising of child sexual abuse.

[The Chair, Conservative, Chris Warkentin]

Thank you.

We'll turn to Mr. Fortin.