OTTAWA, Canada — After several months of hearings — in which MPs from the entire Canadian political spectrum welcomed U.S. anti-porn activists and liability lawyers with open arms, grilled Canadian MindGeek execs as if they were criminals, and first refused to invite and then silenced sex workers — the Standing Committee on Access to Information, Privacy and Ethics of Canada’s House of Commons finally issued its report and recommendations on “Protection of Privacy and Reputation on Platforms such as Pornhub.”
The report follows a turbulent period when even one of the staunchest anti-MindGeek politicians, MP Charlie Angus (NDP, Timmins—James Bay), a key figure during the hearings, called the Canadian parliament proceedings a “dysfunctional circus” hijacked by U.S. nationals "with ties to religious groups that are anti-pornography activists."
The committee hearings were officially chaired by Alberta Conservative MP Chris Warkentin, but mostly served as a platform for the notions and beliefs of fellow Alberta Conservative MP, and prominent Christian activist, Arnold Viersen.
The 14 Recommendations
The Committee issued 14 recommendations:
1. Liability: asked the Government of Canada to “explore means to hold online platforms liable for any failure to prevent the upload of, or ensure the timely deletion of child sexual abuse material, content depicting non-consensual activity, and any other content uploaded without the knowledge or consent of all parties, including enacting a duty of care, along with financial penalties for noncompliance or failure to fulfill a required duty of care.”
2. Duty to Verify Age and Consent: asked the Government of Canada to “mandate that content-hosting platforms operating in Canada require affirmation from all persons depicted in pornographic content, before it can be uploaded, that they are 18 years old or older and that they consent to its distribution, and that it consult with the Privacy Commissioner of Canada with respect to the implementation of such obligation.”
3. Consultation: asked the Government of Canada to “consult with survivors, child advocacy centers, victim support agencies, law enforcement, web platforms and sex workers prior to enacting any legislation or regulations relating to the protection of privacy and reputation on online platforms.”
4. Mandatory Reporting: asked the Government of Canada, in collaboration with the provinces, to amend mandatory report legislation to make the National Child Exploitation Coordination Centre the designated law enforcement agency for the purpose of reporting, and to ensure that the agency “has the resources it needs to investigate the increased referrals of child sexual abuse materials.”
5. Reporting Obligations: asked the Government of Canada to “invest resources to ensure the compliance of access providers, content providers and Internet content hosting services with their reporting obligations."
6. Mandatory Reporting (2): asked the Government of Canada to amend legislation “to extend the period of time to commence prosecution for a mandatory reporting offense.”
7. Mandatory Reporting Compliance: asked the Royal Canadian Mounted Police and other police services to ensure the compliance of Internet service providers with their
reporting obligations “and that compliance be absolute with no means for providers to opt out.”8. Requirements for Uploaders of Content: asked the Government of Canada to “set requirements for uploaders of content to provide proof of valid consent of all persons depicted and that the new regulations include penalties severe enough to act as an effective deterrent.”
9. Age Verification of “Pornographic Content”: asked the Government of Canada to “develop clear regulations that require Internet service providers, as defined in An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service, to utilize a robust process for age verification of all individuals in uploaded pornographic content, including content generated by individuals, studios or contract partners.”
10. Proactive Enforcement of Canadian Laws: asked the Government of Canada to “proactively enforce all Canadian laws regarding child sexual abuse material and the posting of non-consensual material and that in particular, it enforce section 3 of An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service by requiring all Internet service providers, as defined in the Act, to report child sexual abuse material directly to an officer, constable or other person employed for the preservation and maintenance of the public peace.”
11. Accessible Mechanisms for the Removal of Online Content: asked the Government of Canada to “develop accessible mechanisms that ensure that Canadians victimized by the posting of an image or video online without their consent on sites like Pornhub have the right to have that content removed immediately and to be given the benefit of the doubt with respect to the non-consensual nature of the content, and that the Government of Canada provide all the necessary resources required to put in place these accessible mechanisms.”
12. Concerning a Potential New Pattern of Sexual Violence: asked the Government of Canada to “work with key stakeholder groups such as Canadian sexual assault centres, women’s rights organizations and representatives from LGBTQ2 communities to determine if the posting of nonconsensual material depicting sexual violence on sites like Pornhub is reflective of, and contributing to, a new pattern of sexual violence, and that it report its findings, including recommendations for further action, to Parliament.”
13. Accountability of Websites Regarding Downloading and Re-Uploading of “Pornographic Content”: asked the Government of Canada to “hold accountable websites that allow the downloading and re-uploading of pornographic content that erases the identity of the source material, thereby preventing authorities from assessing those accountable for the material.”
14. A New Legal Framework to Impose Certain Obligations on Internet Service Providers Hosting Pornographic Content: asked the Government of Canada to “create a legal framework that would compel Internet service providers that host pornographic content to:
- implement and use available tools to combat the flagrant and relentless
re-uploading of illegal content- hire, train and effectively supervise staff to carry out moderation and
content removal tasks at an appropriate scale;- maintain detailed records of user reports and responses that can be
audited by authorities;- be legally accountable for content moderation and removal decisions
and the harm to individuals that results when efforts are
inadequate; and- build in and design features that prioritize the best interests and privacy
rights of children and vulnerable adults."
Unpacking the Report
- The report claims that on December 11, 2020, the committee began a study on the protection of privacy and reputation on platforms such as Pornhub and that “following the first two meetings, in which it heard from one survivor and the executives from Pornhub and its parent company, Enterprise MindGeek Canada (MindGeek), the Committee decided to hold more meetings.” Two crucial elements missing from that characterization are that the first meeting occurred days after Nicholas Kristof published his article criticizing Pornhub in The New York Times (December 4) and that the “one survivor” was represented by U.S. corporate attorney Michael J. Bowe — former attorney for Donald Trump and Jerry Falwell Jr. — who was also allowed to testify and set the tone for the entire hearing.
- As XBIZ reported earlier, Bowe and other lawyers filed today a massive lawsuit characterizing MindGeek as almost literally "like the 'Sopranos.'" Bowe’s testimony was fundamental in establishing the tone for the entire series of hearings, which were dominated by anti-porn activist MP Viersen and supposedly progressive MP Angus and were manifestly hostile to any arguments put forth by MindGeek execs.
- “In all, the Committee devoted seven public meetings to this study, during which it heard from 40 witnesses. It also received 50 briefs.”
- The report only then mentions that “in December 2020, The New York Times published an op-ed about the adult website Pornhub. The article reported that images or videos of underage individuals could be found on that platform and sounded the alarm on the content moderation practices of Pornhub and its parent company, MindGeek.” Although the piece was labeled an op-ed, Nicholas Kristof is a staff writer at the Times, and the nature of Kristof’s piece remains murky: it’s also been variously referred to as “an expose,” “a report” and “an editorial.” Arguably it is none of those things, but falls somewhere in between: it’s an advocacy piece and religious anti-porn groups Exodus Cry and NCOSE have taken public credit for originating it.
- A footnote to the report reads, in extremely small print, that Kristof’s article “focused on Pornhub but it also denounced the presence of child abuse on mainstream sites like Twitter, Reddit and Facebook.” The Canadian Parliament committee did not probe executives of the latter three platforms about CSAM and moderation.
- “After hearing from a survivor and the Pornhub and MindGeek executives, the Committee expanded its study to hear testimony from additional survivors and child protection organizations, the federal government and law enforcement, support organizations, sex workers and other interested parties.” This is not strictly true. The committee refused to invite sex workers for several months, and only did so after Canadian sex work activists raised their complaints vociferously via social media. The Committee also gave pride of place to religious anti-porn activist Laila Mickelwait, an American spokesperson for the Exodus Cry ministry, who does not fit into any of the descriptions above (“interested parties,” maybe) and consistently obfuscates her affiliations. During one of the hearings MP Angus openly mocked a very serious question raised by MindGeek’s CEO about Exodus Cry and the ministry’s virulently anti-LGBTQ+ background and allowed Mickelwait to dismiss the question without answering.
- The report explicitly claims that “the goal of the Committee in conducting this study was in no way to challenge the legality of pornography involving consenting adults or to negatively impact sex workers.”
- The report adds that “the Committee recognizes that there are different perspectives concerning the regulation of online adult platforms and pornography and that some are diametrically opposed. The Committee felt it was important to hear from differing perspectives to better inform its recommendations to government concerning the protection of privacy and reputation of individuals on online content-hosting platforms.” This is also not strictly true: the MPs at the hearings displayed no interest whatsoever in educating themselves on the workings of the internet, online commerce, the “Moderator’s Dilemma” issue that led to the Section 230 compromise in the U.S., internet-wide issues about third-party uploaded content or any broader question. The hearing was very narrowly targeted to find some kind of criminal and civil liability concerning MindGeek and Pornhub, and it consistently platformed a number of actors (some deceptively credentialed) who expressed blanket condemnations of “all porn” as misogynistic, part of “rape culture,” a source of a supposed “sex addiction" and an alleged public health crisis.
- “Three witnesses told the Committee that their then-partners shared intimate pictures and/or videos of them on Pornhub without their knowledge or permission.” This is correct. At no point in the hearings, however, was it properly examined in what circumstances or geographical jurisdiction the actual crimes (taping, uploading) had occurred, or how to identify and properly punish the perpetrators. Again, the MPs were solely interested in condemning one specific online platform in one specific industry.
- The report quotes Mickelwait directly as “a sex trafficking expert” (sic) without providing a single piece of evidence of this supposed “expertise.” Mickelwait is an anti-porn activist. The committee’s characterization in the official report is complicit with her campaign and belief that “all porn” should be made illegal.
- Mickelwait’s testimony is now part of the Canadian official record, falsely cementing her as an impartial figure on this topic, following in Kristof’s footsteps. The drafting of the report considers every statement by her as a fact and not an allegation by an avowed anti-porn activist. In contrast, statements by MindGeek execs are framed as strictly personal opinions.
- Mickelwait is also given vastly more prominence than the sex workers invited at the last minute. The report states that “all witnesses defending the rights of sex workers highlighted the need to decriminalize sex work and argued that more repressive regulations, legislation, or policies would be harmful to sex workers and their ability to work safely,” but did not address any of these issues in the official recommendations and effectively dismissed them.
- They also omitted any mention of the sex workers’ extremely relevant criticism of their star witness, Mickelwait; the man whose sensationalist prose launched this probe, Kristof; or U.S. liability attorney Bowe.
- The report also repeats verbatim anti-porn rhetoric by “many individuals and organizations” arguing that “pornography companies should not be trusted to self-regulate, often maintaining that the companies profit from CSAM, recordings of criminal activity, sexual exploitation and other illegal or unethical content.” This is, plain and simple, a call for state censorship or regulation of "pornography."
The last point is key: the report is openly asking Canada to regulate legal "pornography" under separate laws from other online content. Since the anti-porn groups can always (and do) argue that there is no absolute way to prove consent or age, the report is sure to be used as Exhibit A in their ongoing push to outlaw all online pornography.
The U.S. activists behind the Canadian hearings now have a government-stamped template to copycat back at home.
For the full report, see the PDF file below.
Main Image: Canada's top anti-porn crusader MP, Arnold Viersen (Alberta, Conservative)
