It’s hard to quibble with the goal behind Bill S-210: keeping pornography, often violent and misogynistic, out of the sight of minors. But good intentions alone don’t make for good laws.
The bill, which has the support of all opposition parties and some Liberal MPs, would require organizations that provide sexually explicit material online to bar access to anyone under the age of 18.
Senator Julie Miville-Dechêne, the bill’s creator, draws a parallel between existing laws that try to prevent minors from buying printed pornography, liquor or tobacco products. And she points out that there have been strong links, if not yet causal links, drawn between pornography’s artificial, often violent, view of sex and harmful gender stereotypes.
There is merit to that concern, but the proposed solution glosses over enormous – some insurmountable – technical difficulties and privacy concerns.
There are a host of critical issues not been spelled out in the bill: How, if at all, a minor’s age could be verified; what agency would enforce the rules; and, most critically, how regulators would determine what is sexually explicit material.
Ms. Miville-Dechêne says there are several viable options for age verification. But critics, including University of Ottawa professor Michael Geist, question that assertion, noting that other countries have struggled to implement similar regimes.
Current face-recognition technology, for instance, would fail at its main test – distinguishing between a 17-year-old and an 18-year-old. The Conservatives, meanwhile, support the bill but oppose the idea of a digital ID.
Even if those technological hurdles can be overcome, there is a bigger problem: any geographically based limitations are easily bypassed through the use of virtual private networks. That fact alone could render useless any attempt at age verification.
And then there are the conceptual limits of the bill. What about private groups on platforms such as Reddit or Discord that don’t look like the usual providers of online content?
And what will happen with sexually explicit material appearing on X (formerly Twitter) or through a Google search? Ms. Miville-Dechêne says such organizations would only need to apply age verification to the sexually explicit portion of their site. Just how Google would go about that task is, to say the least, murky.
The bill is also vague on what mechanism would be used to enforce its rules. Perhaps it could become part of the writ of the Digital Safety Commission that the Liberals have proposed in their Online Harms Act. Or would that be the job of the Canadian Radio-television and Telecommunications Commission?
So far, the Liberal government seems uninterested in backing the senator’s bill, a wise call. As this space said last week, there are problems with the government’s own online harms proposal, particularly its draconian approach to the sentencing framework for hate speech.
That said, the government has taken the right approach by looking to mitigate online harms by creating a statutory duty of responsibility for social media platforms. That wouldn’t stamp out the social ills of the online world, but it could reduce them.
There is another defect lurking within Bill S-210: the use of the Criminal Code’s definition of sexually explicit material for the offence of providing such material to children. That definition is expansive but is constrained by being triggered only in conjunction with other offences against children. It is, for example, an offence to provide sexually explicit material to a minor in order to facilitate committing an indecent act.
However, Bill S-210 does not include that constraint. It does not just prohibit explicit, violent pornography; any kind of graphic nudity and sexual activity could trigger its provisions. That adds to the complications of how the law would affect platforms such as Google or X; it might not be enough for them to wall off hard-core porn sites.
Those are all practical objections to Bill S-210, but there is a philosophical problem as well. At the heart of Ms. Miville-Dechêne’s bill is the assumption that Parliament, not parents, should take the lead in keeping pornography away from minors.
But if there are values to be imparted – a healthy view of sex, for instance – a child’s parents should be the first, and ideally the last, stop.