Information & Ethics Committee on Feb. 22nd, 2021

[The Vice-Chair, Liberal, Brenda Shanahan]

Ms. Gaudreau, you now have the floor for six minutes.

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

Thank you, Madam Chair, and congratulations.

Allow me to express my sincere thanks to our esteemed witnesses. You are again providing us with information that will allow us not only to have what it takes to act, but also to determine that it is urgent to act.

Some of the discussions I had with my kids this weekend made me wonder about the impact that this viral world of adult entertainment consumption could have on our youth. I feel that we need to take a more global view. You tell us, for example, that the legislation in a given country is different from ours and that, depending on the business model in place, people manage to slip through the cracks in every imaginable way. Why not take the bull by the horns and decide to do something upstream quickly, that is, even before allocating space to distributors? We could force them to obtain a licence, or we could force them to demonstrate that everything is done in a legal and preventive way.

Beyond that, another aspect must be taken into account. When we talk about legislation, we're also talking about intervention structures with our country's police forces. When it comes to international cases, however, there is a complete loss of control. I would like you to tell us how we could act. Right now, we have a lot of data and evidence and reports that clearly show us that there is an urgent need for action.

Could you tell us in a few words how we could approach this effectively, when the issues are international?

If, tomorrow morning, we decided to legislate urgently, the fact remains that, in other countries, the legislation would be different.

I'll use the time I have left to give each witness a few minutes to speak. We could start with Mr. Bernhard.

[Daniel Bernhard]

Thank you for the question, Ms. Gaudreau.

I think the answer is that the incidents are international, but they are also very local. Pornhub, MindGeek, is arguably Canada's largest Internet media company. Mr. Antoon lives in Canada, has property in Canada and is fully subject to the jurisdiction of the RCMP. While the crimes may be perpetuated elsewhere, they are also happening in Canada.

In cases in which the company is resident outside of Canada, there is a lever that the government can pull and that is the money. All of the money that comes from advertisers to those platforms can also be stopped. Just as it's illegal to buy drugs with a credit card issued by a Canadian bank or to engage in some gambling activity, in the extreme case in which a foreign company does not comply, we could also cut the money.

In this case, we're talking about hundreds of millions of dollars. If that's not an incentive, I don't know what is.

[Lianna McDonald]

May I just add something, please?

From our organization's perspective, we've been screaming from the rooftops that we are long overdue for regulation.

I think it's incumbent upon us all to ask ourselves how we got here. We as an organization also look at the unregulated nature of the adult pornography issue. There definitely needs to be more than a conversation about how we are going to take the keys back from industry.

Internet freedoms don't mean freedom from accountability and responsibility for what users post on your services. We have been definitely looking at yielding the power, to start, with the Five Eyes, looking at ways countries can become unified in looking at global standards for what we need to do here.

On behalf of children, and they are citizens as well, we can certainly say that we've never needed government more than we do now to step in and intervene.

[John F. Clark]

I would just say from the U.S.-based look at this that the marketplace for CSAM is a global one, and it requires a global effort. As you might naturally believe and know, there are differences in laws around the globe that affect privacy issues and what Internet service providers can do on their platforms.

As has been reported over and over again, however, whenever it involves children or criminal activity, governments must step in and take a very strong stance at regulating what is going on when you're seeing child abuse, child rape, victimization over and over again. We always urge countries near and far to really take a strong look at the legal measures that can be enacted to fight this.

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

Mr. Bernhard, did you want to add any comments?

[Daniel Bernhard]

Thank you, Ms. Gaudreau.

I just wish to comment on something Ms. McDonald said, to disagree in hopes of agreeing with her. It is that I don't believe that the Internet is in fact unregulated. I cannot commit fraud legally on the Internet. I cannot steal legally on the Internet. I cannot sell you heroin legally on the Internet. Likewise, I cannot traffic child pornography legally on the Internet, especially in Canada where the law is clear that publishers are jointly responsible under the conditions I have outlined.

The issue, then, is not that it is unregulated; the issue is that the law is not being applied. That is even more concerning because we have the rules. The question of enforcement, then, is very important. That's what I would like to pose.

[Lianna McDonald]

If I could just add a—

[The Vice-Chair, Liberal, Brenda Shanahan]

No.

Thank you very much.

I must give the floor to the next speaker.

Mr. Angus, you have six minutes.

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

Thank you, Madam Chair, and thank you to each of our witnesses. If I cut you off, it's not that I'm being rude, but I only have six minutes and we have so much to get to.

In terms of legal obligations in Canada, in 2011 Parliament adopted an act regarding the mandatory reporting of Internet child pornography. There are two provisions in it. One is that if an online provider finds issues of child pornography, they have a legal obligation to report to police. As well, they have a legal obligation to report to the Canadian Centre for Child Protection. Madam McDonald, that is you.

We asked Pornhub about their compliance with Canadian law on this matter. Have you found that they are complying with Canadian law in reporting these multiple incidents that we've had to deal with?

[Lianna McDonald]

Lloyd?

[Lloyd Richardson]

There are two pieces there.

The one side, concerning law enforcement, we couldn't really comment on. On the law enforcement angle, the legislation states that basically, if an entity has possession of that material on their system, there are preservation requirements placed upon them and they need to report to Canadian law enforcement. That could be any police officer in Canada.

The second piece is where an entity does not necessarily have possession of the CSAM. It could be an Internet service provider of some sort that has become aware of child sexual abuse material on a different service. They can report that to a designated reporting entity, which is us, the Canadian Centre for Child Protection.

Speaking on this side of things, very recently MindGeek has reached out to us to attempt to report through that means. I can't necessarily speak—

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

I'm sorry. When you say “very recently”, what do you mean?

[Lloyd Richardson]

I mean in the last few months.

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

Could it be since the New York Times articles came out?

[Lloyd Richardson]

It could be pretty close to that time.

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

Okay.

I find it interesting, because when I read the law it says “on a service”. They provide a service. If they're made aware of it “on a service”, my understanding is that they're obligated to report in Canada.

When we asked them this, they said that they reported to NCMEC, Mr. Clark, which might be great, but to me, it's still avoiding the issue of Canadian law.

How long have they been reporting to NCMEC on allegations that are brought forward?

[John F. Clark]

Their reporting to us has just been in recent times, within the last few weeks, probably.

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

The last few weeks?

[John F. Clark]

Yes, it's been the last few weeks.

As was noted, I think, in my testimony, while they provided, I believe, around 13,000 reports, a lot of those were duplicative. We've also noted in some instances a very strong reluctance on their part to take down material that is called in from people who have been victimized. However, when we call them, they take it down.

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

Okay.

[John F. Clark]

There is still a lot of work to be done there.

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

My concern is, under Canadian law, and I imagine it is the same in the United States, the preservation requirements when an issue has been raised and flagged, the obligation to report.

When Serena Fleites, the young woman who I think has really blown the doors off this whole case, spoke to us, that was a groundbreaking moment in changing the discussion. When we asked Pornhub about the efforts she took to get her images down, they said they had no record of her. I found that quite shocking.

Under American law, because Ms. Fleites is an American citizen, would there be preservation requirements such that Pornhub-MindGeek would be accountable for the images they had of her abuse, so that they would at least have a record of it?

[John F. Clark]

It would seem likely that they should have a record of it.

Since NCMEC is a non-investigatory agency, we don't take further steps to investigate that relationship about what they are saying they did or didn't do when somebody reported to them about CSAM material or asked them to take something down. We do engage and provide reports of apparent CSAM material directly to law enforcement, as a clearing house. That occurs at the national centre at NCMEC on a daily, regular basis.

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

Thank you.

I'll now go to Mr. Bernhard on the issue of Canadian law.

We have spent a lot of time at our parliamentary committee on issues of compliance by the tech giants, and Pornhub-MindGeek is a tech giant. It seems to me in my reading of Canadian law that we have very strong laws to protect against non-consensual exploitation of images. We have strong child pornography laws.

I believe there's only been one online investigation, and it wasn't against any company nearly as big as Pornhub. Safe harbour provisions have protected the tech giants, because they don't know what's on their servers. However, Pornhub officials told us that they viewed every single image. If they viewed every single image, that means they would endorse that image as being okay.

Would you think there would be an issue of responsibility there, and as well that the tags that identify “knocked-out teen” or “raped teen” would be the promotion of acts that we would consider illegal? They seem to be not sure whether “teen” is legal or illegal; however, I think under Canadian law.... Do you believe they would be protected under safe harbour provisions?