Briefing note: Bill S-210: An Act to restrict young persons’ online access to sexually explicit material

Purpose:

 For decision.

Issue: 

1. Bill S-210, An Act to restrict young persons’ online access to sexually explicit material, is sponsored by Senator Julie Miville-Dechêne and was passed by the Senate in April 2023.
2. On December 13, 2023, the Bill was referred to the Standing Committee on Public Safety and National Security (SECU Committee). The start date for the consideration of Bill S-210 has not yet been confirmed.
3. While you have not yet been called to appear, during debate at second reading, Members raised privacy issues and questioned the extent to which our office was involved in the drafting of the Bill.^{Footnote 1}
4. This note analyses Bill S-210 and proposes recommendations with respect to the Bill in the event you are called to appear.

Background:

5. Bill S-210 would make it a summary offence for organizations to make sexually explicit material available online to young persons for commercial purposes, punishable by a fine of up to $250,000 for a first offence and up to $500,000 for subsequent offences.
6. The Bill provides for three defences to the offence, one of which is if the organization believed the person accessing the material was at least 18 years old, but only if a method of age-verification prescribed by regulations was used.^{Footnote 2} It would also enable a designated enforcement authority to take steps to prevent sexually explicit material from being made available to young persons on the Internet in Canada.
7. In June 2021, our Office appeared before the Senate Standing Committee on Legal and Constitutional Affairs on Bill S-203, the previous iteration of the Bill. At the time, we called for technical safeguards; that the principle of data minimization be applied to reduce data matching and surveillance of individuals; and for strict controls on access to user data.
8. During the appearance we also noted that the age verification process would apply to adults, which would increase the risk of revealing adults’ private browsing habits. We noted it would be important that the chosen age-verification method be designed and implemented with sufficient privacy protections so that Canadians feel secure in providing their personal information.
9. Bill S-203 was passed by the Senate in June 2021, but died on the Order Paper when a federal election was called.
10. While our Office did not appear at the Senate committee stage on Bill S-210, some witnesses raised privacy concerns about the Bill. The CIO Strategy Council and the Canadian Bar Association had concerns about the type of age-verification technology that may be utilized and how it may impact the privacy and security of adults who choose to legally access online pornography. Questions were also raised about how personal data would be collected and stored in an appropriate manner.
11. In response to concerns, during the clause-by-clause consideration of Bill S-210 in the Senate, Senator Miville-Dêchene moved an amendment to section 11 to require that, before prescribing an age-verification method, the Governor-in-Council consider whether the method:
1. is reliable;
2. maintains user privacy and protects user personal information;
3. collects and uses personal information solely for age-verification purposes, except to the extent required by law;
4. destroys any personal information collected for age-verification purposes once the verification is completed; and
5. generally complies with best practices in the fields of age verification and privacy protection.
12. In its report on S-210, the Standing Senate Committee on Legal and Constitutional Affairs included a series of observations.^{Footnote 3} Observations included that young people are naturally curious and constantly learning and that exploring one’s sexuality, having questions, and experimenting are all part of becoming an adult. The Committee recognized that sexual health education is one of the best safeguards against harm and noted that while S-210 is a laudable effort, any legislation needs to be complemented with robust sexual-health education and better pornography literacy programs.

Analysis:

(redacted)

13. Bill S-210 applies to organizations that make sexually explicit material available on the Internet for commercial purposes to young persons. “Organization” has the same meaning as in section 2 of the Criminal Code:
    1. a public body, body corporate, society, company, firm, partnership, trade union or municipality, or
    2. an association of persons that
       1. is created for a common purpose,
       2. has an operational structure, and
       3. holds itself out to the public as an association of persons.^{Footnote 4}
14. The Bill as written would appear to include services that may make available some sexually explicit material, but that could be primarily focused on other content, such as social media and search engines.
15. The Bill similarly draws on the Criminal Code for its definition of sexually explicit material. It states that sexually explicit material means material that is not child pornography, and is:
    1. a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
       1. that shows a person who is engaged in or is depicted as engaged in explicit sexual activity, or
       2. the dominant characteristic of which is the depiction, for a sexual purpose, of a person’s genital organs or anal region or, if the person is female, her breasts;
    2. written material whose dominant characteristic is the description, for a sexual purpose, of explicit sexual activity with a person; or
    3. an audio recording whose dominant characteristic is the description, presentation or representation, for a sexual purpose, of explicit sexual activity with a person.^{Footnote 5}
16. (redacted)
17. (redacted)
18. (redacted)

Prescribed Age Verification Methods

19. The Bill states that the Governor in Council may make regulations for carrying out the purposes and provisions of this Act, including regulations prescribing the age-verification methods.
20. As mentioned, the Bill provides for three defences to the offence provision, one of which is if the organization implemented a prescribed age-verification method to limit access to the sexually explicit material made available for commercial purposes to individuals who are at least 18 years of age.^{Footnote 6}
21. If the Act were to come into force before any method of age verification is prescribed by regulation, it is not clear whether this defence would be available to organizations.
22. Per section 11(2), before prescribing an age-verification method, the Governor in Council must consider whether the method is reliable; maintains user privacy and protects user personal information; collects and uses personal information solely for age-verification purposes, except to the extent required by law; destroys any personal information collected for age-verification purposes once the verification is completed; and generally complies with best practices in the fields of age verification and privacy protection.
23. It is difficult to comment on the regulations and to assess the Bill effectively given that prescribed age verification methods are to be determined at a later date by the Governor in Council. Age verification technologies vary widely in their quality and approaches to privacy. (redacted)

Recommended action:

We propose making the following recommendations to the SECU Committee in the event you are called to appear on Bill S-210:

(redacted)

Reference:

Bill S-210, An Act to restrict young persons’ online access to sexually explicit material, 2nd session, 43rd Parliament, 2023 - https://www.parl.ca/DocumentViewer/en/44-1/bill/S-210/third-reading

(redacted)

Consultations:

V. Lockton (PRPA); N. Sayed (Legal Services)

Approval:

Distribution: Commissioner; PRPA; Legal Services; TAD; Communications

Annex A – Proposed speaking points for S-210 statement – 5 minutes (approx. 700 words)

(redacted)

Annex B – Proposed issue sheet topics

• Comparison to S-203 (Legal)
• OPC’s actions on protecting children online (PRPA)
• Age verification vs Identity verification (PRPA)
• Privacy risks related to age verification (PRPA)
• Privacy protective age verification methods (PRPA)
• Use of third-party intermediaries (PRPA)
• Use of facial recognition for age verification (PRPA)
• Is encryption an effective safeguard? (TAD)
• Use of VPNs to Bypass Requirements (TAD)
• Status of Digital ID Implementation in Canada (PRPA)
• Definition of "Young Persons" (Legal)
• Offence provisions (Legal)
• Other jurisdictions (Legal)
• Mindgeek (Compliance)
• Bill C-63 (Online Harms) (PRPA)
• International best practices
• What the OPC supports re: age verification models (TAD)
• Digital ID: DPA Position (PRPA)