Evidence of meeting #108 for Public Safety and National Security in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was privacy.
A video is available from Parliament.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Sure. It could be in the definition or it could be under the offence, talking about “makes available”, or primarily makes available. We have pointed to international comparators in Texas and Utah where they talk about “substantially”, or they sometimes reference even “a third” of the material.
Just a quantitative requirement could be a way of targeting those broader pornographic websites.
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
Thank you.
You also had an exchange with Mr. Caputo on clause 11, where I know you had recommended some additional criteria. My question is really on subclause 11(2), on the wording before we get to the list. I asked the senator about this as well.
It just says, “Before prescribing an age-verification method under subsection (1), the Governor in Council must consider whether the method”. Are you satisfied with language that says “must consider”, or would you prefer language that forces the Governor in Council to actually follow these? For me personally, when I look at that, I think that gives the government a little bit of a way out: Oh, we addressed three out of five. We did consider everything.
What if the Governor in Council were forced to verify that it is reliable, that it maintains privacy and that it collects and uses personal information solely for age verification purposes? Do you have an opinion on that?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
I think you asked a good question, and I think the senator gave a good answer to your question—that this is in the bill and there's an expectation that the Governor in Council will consider this. It's explicit.
Would I prefer stronger language, that the mechanism “must include” the following things? I think that's stronger language, and I would be supportive of that, but on the requirement of “must consider”, I also tend to presume good faith on the government that they're going to draft regulations. The statute says this. If it's completely absent, then it's an obvious element to raise. I would certainly, as I say, expect to be consulted on the development of regulations of that nature, and I would be making recommendations to make sure they are privacy protective.
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
Thank you, I appreciate that.
Mr. Ripley, I would like to turn to you.
I know that you hesitated in forming an opinion on possible amendments this committee might consider. That being said, we as committee members need to know, if we are going to make amendments, how they're going to be perceived by the government.
I know that you were hesitant to expand a little bit on the definition of what “sexually explicit material” is, but I guess I want to know, from the department's point of view, how open to interpretation you are.
Do you need us as a committee to create much more specific language? We want to know, from your point of view, what you need us to do. Help us to help you.
Associate Assistant Deputy Minister, Cultural Affairs, Department of Canadian Heritage
Again, I would reiterate that I'm not in a place to take a position on behalf of the government with respect to amendments. What I would point you towards is that, again, the problematic aspects of the definition in the Criminal Code are really the paragraph 171.1(5)(a), where you do not see, like you see in paragraphs (b) and (c), for example, the caveat of “for a sexual purpose”.
Again, in paragraph (a), the language is broad enough to capture sex scenes or nudity regardless of whether they are being shown for a sexual purpose, for example. Again, it would capture entertainment content.
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
But, again, if we go ahead in the bill to page 4, subclause 8(1) talks about the enforcement authority:
If the enforcement authority has reasonable grounds to believe that an organization committed an offence under section 5;
How do you interpret “reasonable grounds”? Do we not trust people to know the difference between a movie on Netflix and obvious pornography?
A movie, as Mr. Bittle said, that has very sexually explicit scenes is not being commercially made available for that single purpose; it's part of a story, whereas, I think we all know that pornography's main raison d'être is that sexually explicit material.
Associate Assistant Deputy Minister, Cultural Affairs, Department of Canadian Heritage
The challenge is that the definition that the bill is based on, the definition of “sexually explicit material”, is not limited to pornography. The offence in clause 5 of the bill is as follows:
Any organization that, for commercial purposes, makes available sexually explicit material on the Internet to a young person is guilty of an offence....
The reasonable ground to believe is whether they've made sexually explicit material available. Again, there's nothing in the definition of “sexually explicit material” that limits it to pornography.
As I mentioned, paragraph 171.1(5)(a) of the definition in the Criminal Code states:
(a) a photographic, film, video, or other visual representation, whether or not it was made by electronic or mechanical means, (i) that shows a person who is engaged in or is depicted as engaged in explicit sexual activity...
There's no limitation there that it's pornographic.
And then subparagraph 171(5)(a)(ii) states:
(ii) the dominant characteristic of which is the depiction, for a sexual purpose...
There you see the sexual purpose.
Again, there are certain places where you see this caveat, and that first paragraph that I read doesn't have that limitation.
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
I also want to refer to the fact those two are separated by an “or” not an “and”, which is an important point to make.
Thank you very much.
Liberal
The Chair Liberal Ron McKinnon
Thank you, Mr. MacGregor.
We'll start our second round now. This is a five-minute, five-minute, two-and-a-half-minute and two-and-a-half-minute round.
We will end this round after Mr. MacGregor. I think that's the consensus.
We will start with Mr. Genuis for five minutes, please.
Conservative
Garnett Genuis Conservative Sherwood Park—Fort Saskatchewan, AB
Thank you, Chair.
Thank you to our witnesses.
We're obviously familiar with the Liberal government's position on this bill. With respect to the officials, of course you're in a position to support that position. Your role as an official is not to come here and state your disagreement with government policy, even if you might privately disagree with government policy.
I will just say that I think that many of the arguments you put forward were clearly refuted by the senator already. I also want to say that I think Bill C-63 is a real disaster. It raises actual censorship issues. It has nothing on age verification. It's far, far broader than Bill S-210 at every level. It's enforced by vaguely empowered bureaucratic agencies and it includes dealing with speech.
Most Canadians who have seen what your government did.... To be fair, I understand your role as a non-partisan public servant, tasked with providing fearless advice and faithful implementation. However, what the Liberal government has put forward in Bill C-63 is not being well received across the board.
On the issues with section 171, I'm looking at the Criminal Code and trying to understand the argument here.
We have one definition of sexually explicit material in the Criminal Code. Implicitly, it's being suggested that maybe we could have multiple different definitions of sexually explicit material operating at the same time. However, it seems eminently logical that you would have one definition that relies on the existing jurisprudence.
As Mr. Bittle has suggested that if this definition covers the Game of Thrones, then it's already a problem because it already violates the Criminal Code if, in the commission of another offence, you were to show a child that material. Therefore, you already could run afoul of the Criminal Code if you put on Game of Thrones in your home for your 16-year-old. That's not happening. No one's getting arrested and going to jail because they let their 16-year-old watch Game of Thrones. If that's not happening already off-line, then maybe that suggests that this extensive reinterpretation of what the existing law already says is a little bit exaggerated.
In this context, we also know that Pornhub has been represented by a well-connected Liberal lobbyist who has met with Liberals in the lead-up to the vote.
I want to ask the Privacy Commissioner about what he said in terms of potential amendments.
How would this apply on social media? I'm going to just pose the question. I have young children. I obviously don't want them accessing the major, well-known pornography websites. I also don't want them seeing pornographic material on any other website that they might go to for a legitimate purpose. Therefore, if my children are on social media—they're not—or if they were on another website, if they were watching a YouTube video on that, whatever it was, I would want to ensure that 6-, 7-, 8-, 9-, 10-, 11- and 12-year-olds were not accessing pornography, regardless of the platform and regardless of the percentage of that company's overall business model.
I don't really understand philosophically why it would make sense or protect anyone's privacy to have an exemption for sites where it's just a small part of what they do, because if the point is to protect children, then the point is to protect children wherever they are.
I'd be curious for your response to that.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
There have been discussions. If we look at the U.K. age-appropriate code or we're looking at general design for sites for children, there can be a range of tools that can be used. There could be parental approval or there could be education, etc.
A big part of the discussion is the risk-based approach. The higher the risk, the higher the tool you're going to use. If you go to the age verification, that's a higher-level tool than parental approval, or education or outreach.
All of those things can be considered, but if the goal is to get at pornographic websites, I raise the question in terms of the numerical element. So—
Conservative
Garnett Genuis Conservative Sherwood Park—Fort Saskatchewan, AB
I'll give it back to you in a moment, but I would just say that the goal is to prevent my children, and other people's children, from accessing sexually explicit material on the Internet. In the same way that we don't let children access alcohol, if they're accessing alcohol in a bar or at a hotel that has many other lines of business, the point is that children shouldn't be accessing alcohol. Given that there already are age gates on, for instance, some of these sites....
The senator mentioned something in this regard. It's not really in effect, but Twitter is already letting you know that you're going into a particular area here. It doesn't seem like it would be difficult to apply that age verification principle everywhere that kind of material exists.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Some of the principles that we often put forward are necessity, proportionality and making sure that you're using the least amount of personal information for your goals, and so that's why I'm talking about necessity and proportionality in the regulations, not tracking...using, again, the smallest amount and asking Canadians to provide the least amount possible of personal information. That said, age verification is appropriate in appropriate contexts.
Conservative
Garnett Genuis Conservative Sherwood Park—Fort Saskatchewan, AB
I hope you're significantly engaged on the regulation, obviously, because you have a lot of expertise to offer at that point.
Thank you very much.
Liberal
The Chair Liberal Ron McKinnon
Thank you.
We go now to Mr. MacDonald. You have five minutes, please.
Liberal
Heath MacDonald Liberal Malpeque, PE
Thank you for being here.
This is an extremely important topic. I think we're all trying to get to the same result, and that's to protect children as much as possible.
I go back to Mr. Dufresne. I was trying to find some information on the program that's being used in Spain, so I wonder, do you have the name of that program they use for verification?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
They're developing information on potential third party tools that would verify your age. The goal is that, when you're verified by this tool and then you go to a website, you're not giving your age to that website: It just says, “I've been verified.” They issued documentation. They call it the “Decalogue of Principles”, and they talk about, “What are the things we want to see in there?” One of them is, “No tracking.” One of them is risk—mitigating risk and using it for the appropriate purposes. They have been working on potential tools, as have my French colleagues. Australia is doing a pilot project to test this out. There's work happening, and we're going to continue this work with our colleagues internationally to develop principles and then work with industry.
Liberal
Heath MacDonald Liberal Malpeque, PE
Do you see anything, in the effect of these two proposals that you have put forward to countries—your counterparts in Spain or the U.S.—to say, “Is this being incorporated into the technology verification that they potentially could use?”
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
We're working very closely with them, with the goal of issuing a joint statement of principles to say, “Here's what we want to see, as a community, in terms of age verification tools. Here are the principles.” I'll be doing some consultation later in Canada to see, “Here's what we propose and how we get this balance,” while again making sure that you're using this to identify the age, and not the specific age but the fact that the person is a minor or an adult; that you can do this anonymously; that there are some checks and balances; and that there are safeguards for that information. You don't want that information to be breached and then lead to challenges. We're looking at a full spectrum of principles, but also the technological implications.
Liberal
Heath MacDonald Liberal Malpeque, PE
We heard in here today a bit about reporting mechanisms, enforcement—maybe we're not clear on it—and digital literacy partnerships with tech companies. For my own verification, when we're using a third party technical company and we're dealing with, let's say Pornhub, and although—and I'm assuming this—Pornhub is getting only the information that says, “Yes, this individual is 18 years old,” or, “No, the individual is not 18 years old,” if there's some infraction with the technical company, who's liable? Is it Pornhub, which hired the technical company, or is government responsible for the technical company? Where does that liability lie?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
The bill as drafted says that it's a defence for the organization—in this case Pornhub—to believe the person was not a minor, and they would have done that by using the age-verification mechanism prescribed by law. If there were a breach of the mechanism, if there were a concern there, I think that would then get raised and would raise questions about that tool and the provider.
Liberal
Heath MacDonald Liberal Malpeque, PE
Pornhub would not necessarily have the responsibility or the liability; it would be the technical company.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
We'd have to see the case-by-case scenario. Pornhub would have to establish that it had met its obligation, under the act, which is to verify the age with the prescribed mechanism.
Liberal
Heath MacDonald Liberal Malpeque, PE
I know the senator mentioned—and I never had a question for the senator, obviously—the double-anonymous method verification. Can anybody explain exactly what that is for me, or for us?
Associate Assistant Deputy Minister, Cultural Affairs, Department of Canadian Heritage
My understanding would be that, again, there are a variety of systems in place to protect an individual's privacy—a token-based system whereby that entity validates that you are 18, and then the technology when you go to access a pornographic website, or something like that. There's no identifying information in the token that you use, for example, with other technologies around facial scanning or whatnot in an environment where there's no personal information that is being held.
Again, the objective would be to make sure that that infrastructure is in place, but again, what we are seeing internationally is that jurisdictions are still working through this. It's been years, and there's not consensus yet on the accuracy and privacy ensuring nature of these. In this context, we have a one-year implementation timeline where the minister would have to choose an entity; that entity would then have to do the appropriate consultations and put in place the framework.
Otherwise, every service that is in violation of this bill is theoretically subject to committing an offence and, therefore, subject to potential website blocking.