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By Kieran Leavitt Edmonton Bureau, Toronto Star
Sun., Dec. 13, 2020
A working group of MPs and senators looking at ways to combat human trafficking sent a letter to Prime Minister Justin Trudeau in March outlining concerns it had about videos being posted on Pornhub, the popular pornography website based in Montreal, and calling on the government to act.
In November the group wrote to federal Justice Minister David Lametti, making the same case.
Both letters went unanswered.
Now the federal government is scrambling to address concerns about the company after New York Times columnist Nicholas Kristof wrote last Sunday about Pornhub doing little to protect children from having videos of them being sexually exploited, uploaded and downloaded on its website, all while making money. Kristof called out Trudeau for not taking action.
The story prompted a pledge from Canadian Heritage Minister Steven Guilbeault that new regulations involving fines in the millions of dollars for companies that skirt the rules were coming in early 2021. MindGeek, which owns a vast network of porn websites, including Pornhub, would be subject to those regulations, he said.
Sen. Julie Miville-Dechêne is part of the working group that’s been looking at several issues around human trafficking for much of the year, including how Pornhub operates.
“It’s not easy to go after the intermediary platform that has the model of YouTube, because the citizens are putting the material in,” Miville-Dechêne told the Star.
But since the story came out in the Times, work on the file has seemingly skyrocketed in Ottawa, she said. “The rhythm has really increased.”
But does the criminal code apply to Pornhub in this case? Some experts think it does and others say it doesn’t, but should.
Pornhub receives about 42 billion visits each year and 6.8 million videos are uploaded to its platform. In a statement sent to the Star, the company pointed to a review by the Internet Watch Foundation which found 118 instances of child sexual abuse content (CSAM) over a three-year period on the website.
“Any assertion that we allow CSAM (child sexual abuse material) is irresponsible and flagrantly untrue,” said the statement.
And after all, someone making billions of dollars of pornography and CSAM would never, ever lie!
As Kristof noted in his opinion column, the promotion of underage pornography and apparent prevalence of child exploitation is easy to find if one searches the website. And as the Times article points out, unlike YouTube, visitors to Pornhub have been able to download videos directly from the website, allowing them to be shared, and uploaded over and over again.
And, consequently, the victims can never really get rid of the horror.
For Toronto-based criminal defence lawyer Bruce Daley Canada’s current laws give the federal government plenty of room to take action.
If the political will is there, Daley said.
Which it isn't, of course. Absolutely nothing has been done to combat child sexual abuse and child sexual abuse images, child sexual trafficking or anything else in that evil field since Trudeau has come to power.
“This is not a question of laws, there are good laws there on the books,” said Daley, who has defended clients facing child pornography charges and accused of sexual assault. “It’s a question of devoting the resources to have enforcement be effective.”
“There is nothing preventing police forces and regulatory agencies from charging any of these companies under the present legislation,” he said.
He pointed to Section 163.1 (2) of the criminal code which punishes a person who “makes, prints, publishes or possesses for the purpose of publication any child pornography.” There’s also Section 163.1 (3) which says a person who “transmits, makes available, distributes, sells, advertises, imports, exports or possesses (child porn) for the purpose of transmission, making available, distribution, sale, advertising or exportation” is guilty of an offence.
A federal law from 2011 under Bill C-22 also stipulates that an internet service provider must report if their service is being used to commit a child pornography offence.
But not everyone agrees it’s that simple. Jordan Donich, a criminal defence lawyer in Toronto who’s worked on professional regulation and civil litigation cases, says that under the criminal code what Pornhub is doing is “perfectly legal.”
Pornhub itself, very likely, isn’t posting child porn — its users are, said Donich. The company is also not recording voyeuristic material and publishing it.
“Someone would have to craft an argument, whether into legislation, or some other fashion, that said ‘Hey, look, you’re right, Pornhub isn’t intentionally posting child pornography, they’re not intentionally recording women and posting it without their consent or knowledge, but some of their users are and it cannot be that they have no liability there,’” he said.
Some are calling on the government to look at doing just that, including Liberal MP John McKay, who told the Star there should be a “substantial review” of the law governing distributing, publishing and platforming child pornography.
“When the law was drafted, it was probably not anticipated that this kind of operation would take place,” he said. “A review is in order and I would start it yesterday.”
What constitutes consent, the security of images and the ability to download and transmit them needs to be changed, he said.
“Even the company has recognized that this is a significant problem,” McKay said.
But in the end, there’s nothing stopping the company from moving to a “friendlier jurisdiction” in another country should the regulations coming next year impact the company’s business model, he said.
Under pressure from lawmakers, the public, and Visa and Mastercard saying they’d assess their relationship with the company, Pornhub announced it would make two changes many people have long called for. Unverified users won’t be allowed to upload videos to the website and the company will stop giving users the ability to download videos, the company said in a blog post Tuesday.
But Donich said these measures aren’t “going to do anything” for victims who have to grapple with the exponential spread of their images across thousands of porn websites that still let users upload.
“That’s one website out of a trillion,” he said. “All that is, is a Band-Aid to a larger problem.”
Ultimately, it’s a fine line for the government. Trying to restrict one website will likely have implications for other platforms and people doing legal things, Donich said.
“They’ve got to balance it between somebody who legitimately wants to record (legal sex acts) and post it online and they should be allowed to do that,” he said.
“How do you enforce that while vetting illegal content? It’s a balancing act.”
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