Public Safety Committee on May 27th, 2024

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Where I'm going with this is that when I read subclause 11(2), it's my view that an appropriate balance can be struck based on the instructions that this section gives us in terms of how the regulations should operate. In other words, data is only to be used for age verification. It's not to be used for any other reason and it is to be destroyed once the goal—as in age verification—has been accomplished.

To me, that seems like it's going fairly far in addressing any privacy concerns. The whole point here is to preclude children from accessing harmful information.

We're saying that they have to record it only for this purpose, they can't use it for any other purpose, and they must destroy it. I'm just trying to see how we could actually go any further in regulation than that.

[Philippe Dufresne]

Other data protection authorities—for instance, my Spanish colleagues—have set this out explicitly as a principle, saying that this should not be used for tracking and this should not be used for profiling. Therefore, I think being absolutely clear on that, either in the bill or in the regulations themselves, is important.

Technology can evolve. Tracking technologies can evolve. This has to be technology neutral. We need to make sure that the principle will capture whatever advances in technology and that it is used to verify age and for nothing else.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

I think the fact that it could be used in regulation satisfies where I was going.

Thank you very much.

[The Chair, Liberal, Ron McKinnon]

Thank you, Mr. Caputo.

We go now to Mr. Bittle for six minutes, please.

[Chris Bittle, Liberal, St. Catharines, ON]

Thank you so much, Mr. Chair. I'd like to thank the witnesses for being here.

I agree with Mr. Caputo in that, around the table, I think we'd all like to see the same thing, of children not having access to it.

I'd like to start with Mr. Dufresne.

You mentioned in your comments changes required perhaps to narrow the focus of the legislation. I mentioned in previous questioning that I'm a huge Game of Thrones fan. I won't ask you if you've seen it. I don't want to put you on the hot seat, if that is a question to put one on the hot seat.

Would shows like that put a company like Crave, which I believe is owned by Bell, potentially under the scope of this legislation, if we don't bring in amendments like you suggest?

[Philippe Dufresne]

Again, it would be up to the courts and the organization that would look into that.

If you look at the definition of sexually explicit material in the Criminal Code, it describes “photographic, film, video or...visual representation” and a person “engaged in explicit sexual activity”. It could be “written material whose dominant characteristic is the description, for sexual purpose, of [explicit] sexual activity”.

It raises that question of what will be captured and bringing that clarity.

I understand that the purpose of this is to capture pornographic websites and other types of visual images and so on and protect children from that. That's one of the points I'm highlighting.

[Chris Bittle, Liberal, St. Catharines, ON]

I guess I'll ask the same question of Mr. Ripley.

When I originally saw this bill, I started thinking of movies I have seen. I listed a few, like Schindler's List, Green Book, Crash and Gladiator. These are movies that I think we all know or can all agree are artistic. I believe they all have won an Academy Award for best picture, though we may disagree on whether some of those films should have won in that year.

Mr. Ripley, would this bill capture those films if they were put on a website?

[Owen Ripley]

The government's position is that, yes, they would be captured because the definition of sexually explicit material that is being proposed would include things like the depiction of sex scenes or nudity where it's nudity for a sexual purpose. Those services would be required to institute age verification to access that kind of content.

I think what needs to be understood is that the definition being proposed makes sense in the context of the Criminal Code, where it's speaking to a variety of offences, including when adults may be engaging with minors using sexually explicit content. It makes sense in that context.

However, it is not limited strictly to pornography. It is broader than pornography and would capture things like sex scenes or nudity.

[Chris Bittle, Liberal, St. Catharines, ON]

To Mr. Ripley, I know you talked about the CRTC a lot when I was on a different committee and you were a witness there, but it would seem to be—and perhaps you can correct me—the most likely organization to be policing this legislation.

I wonder if you could explain that, or if there are any other organizations you're aware of that would be involved in that.

[Owen Ripley]

Thank you for the question.

The government is concerned about the implementation proposed by the bill. To be clear, the way this would play out is that there would be a minister designated, and then that minister would need to make a proposal to the Governor in Council or to cabinet about which federal department or agency would be best placed to administer this piece of legislation. If it were adopted as is, indeed, a minister would have to canvass the existing agencies or departments and make an assessment about which was best able.

I would highlight that in the context of the online harms bill, the government ultimately came to the conclusion that no entity exists, whether it be the CRTC or, with all respect to the person sitting next to me, the Privacy Commissioner, that is well equipped to play that role. The government is of the opinion that we need an entity that has the right expertise and the right framework in order to regulate the online space as it relates to online harms. That is why the government is proposing the creation of a new entity to make sure the oversight of this space is done appropriately with the right safeguards in place.

[Chris Bittle, Liberal, St. Catharines, ON]

Mr. Dufresne, do you think your office would be in a position to police this legislation?

[Philippe Dufresne]

For this particular legislation, we would take on the mandate that Parliament would give us and fulfill it to the best of our abilities. I don't think the intention is that this is something my office would deal with, with the caveat that, in terms of regulation making, we are happy to provide advice and input and to be consulted on that to ensure that this is done through a privacy lens.

[Chris Bittle, Liberal, St. Catharines, ON]

Thank you so much.

I don't have much time, but perhaps I could turn to Mr. Ripley for him to expand on Bill C-63, the online harms act, with respect to what the government is intending to do to protect individuals from harms that are on the Internet.

[Owen Ripley]

Thank you for the question.

The online harms act would apply to social media services. It proposes three core duties, one of which, as was alluded to earlier, is the duty to protect children. That is fashioned as quite a flexible duty, which would permit the digital safety commission to put in place a number of different kinds of measures or obligations to better protect Canadian children in the online space through the use of age-appropriate design.

The government's view is that this is a sufficiently flexible duty that could accommodate a question of whether there are certain services, for example, that should use age-assurance or age-verification mechanisms. The government's view is that the framework has the appropriate safeguards in place, and there would actually be a regulator with that mandate and the necessary expertise, through consultation with civil society and experts, to do that in an accurate way and in a privacy-respecting way, if that were to be considered.

[Chris Bittle, Liberal, St. Catharines, ON]

Thank you so much.

[The Chair, Liberal, Ron McKinnon]

Thank you.

Ms. Michaud, you have the floor for six minutes.

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you, Mr. Chair.

Thank you to the witnesses for being here.

Mr. Ripley, this is a very interesting conversation. I did not really understand the government's reluctance to support this bill, but now it's becoming a little clearer. I understand that, in your opinion, the definition of sexually explicit material is too broad. I'm looking for a solution.

Would this bill be more acceptable to you if it had used the term “pornography” and defined it outright, instead of the term “sexually explicit material”? Would that make a big difference to you? Would it reduce the likelihood that the bill would apply to nudity or a sex scene in a film?

[Owen Ripley]

Thank you for the question.

I'm not in a position to give an opinion on potential amendments. However, if I understood correctly, the senator's intention is to target pornography. As you mentioned, the definition of “sexually explicit material” is broader than that of “pornography”. If the senator and the members of the committee really intend to target pornography, we could think about how to limit the current broader definition.

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

You also have concerns about the protection of privacy and personal information.

Comparisons are often made with Bill C‑63, but in my opinion, the two are quite different. Bill C‑63 aims to protect children from harmful online content, which is commendable. Bill S‑210 seeks to limit access to pornography.

The regulator you want to create through Bill C‑63 seems as though it could be very effective in playing that kind of role. The digital safety commission could play the same role as commissions in other countries. The same goes for the age verification processes.

Can you tell us what concerns you have regarding privacy, as well as any other concerns?

[Owen Ripley]

Thank you for those questions.

In the sense that the purpose of Bill C‑63 is to promote online safety and reduce harm, the duty to protect children, which is referred to in section 64 of the proposed act, is quite flexible. According to the proposed section, “an operator has a duty, in respect of a regulated service that it operates, to protect children by complying with section 65.” Section 66 of the proposed act gives the commission the power to establish a series of duties or measures that must be incorporated into the service.

According to the government, the proposed act provides the flexibility needed to better protect children on social media. During the consultations, it is certainly legitimate to wonder whether the appropriate response is to require some services to adopt age verification. Once again, there will be a specialized regulator with the necessary expertise. In addition, there are mechanisms to consult civil society and experts to ensure that these decisions are well-thought-out.

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you.

I imagine you looked at what is being done in other countries, particularly Germany, the United Kingdom and France, which were mentioned earlier.

When it comes to age verification, the senator suggested dealing with third parties instead of directly with pornography sites. Do you have any concerns about that? Do you think that's an acceptable way to proceed?

[Owen Ripley]

We are following developments at the international level, absolutely. The government does not deny that there is a lot of movement in this area.

Again, our reading of the issue is that the technology has not necessarily reached maturity. Internationally, Australia and France are still looking at these issues. The French are in the process of testing some solutions, but they have not yet completed their work. In the United States, as you pointed out, infrastructure needs to be put in place. Louisiana lawmakers introduced verification measures to block access to minors. Other American states have proposed similar legislation, but we see that some services have withdrawn their access in those states because there is still no infrastructure in place.

Clearly, a number of solutions are possible. I'm thinking in particular of security tokens, where age verification is done by a third party. As you mentioned, we can also look at device verification. Another solution is facial scanning technology that tries to determine the user's age. It is important that these solutions be deployed in a context where safeguards are in place to ensure that privacy rights are respected. We don't want to create a framework that puts a duty in place without safeguards.

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you, Mr. Ripley.

[The Chair, Liberal, Ron McKinnon]

Thank you, Ms. Michaud.

We will go now to Mr. MacGregor for six minutes, please.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you very much, Mr. Chair.

I would like to thank our witnesses for being here today.

Mr. Dufresne, I would like to start with you. I just need some clarification. In your opening remarks, you recommended that the committee “consider restricting the requirement for age verification to websites that primarily provide sexually explicit material for commercial purposes”. Where exactly would you like to see us do that?

I know that in the interpretation section of this bill, it has this definition for organization: “organization has the same meaning as in section 2 of the Criminal Code”. Is that where you'd like to see a little bit more specificity, or can you identify where?