Age verification for “sexually explicit material” could impact Netflix

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OTTAWA – Canada’s privacy commissioner and a government official are warning that a Senate bill seeking to ban minors from accessing “sexually explicit material” online could also apply to streaming services such as Netflix.

Philippe Dufresne, the country’s data protection commissioner, believes lawmakers need to drastically limit the scope of the bill to address concerns about “what is being recorded.”

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Dufresne, along with Owen Ripley, an assistant minister from Canadian Heritage, were the first to testify before a parliamentary committee tasked with examining a bill proposed by independent Senator Julie Miville-Dechene, who also discussed her bill.

“The bill is highly problematic for a number of reasons, including its far too broad scope, both in terms of regulated services and regulated content,” Ripley testified late Monday.

Experts such as Michael Geist, a law professor at the University of Ottawa who specializes in internet and e-commerce law, say age verification technology is simply not ready yet and the “fundamentally flawed” draft bill raises significant data protection concerns.

Supporters of the bill argue that its purpose, protecting minors from sexually explicit and violent material, is important enough to pass, and that the technical details would then have to be worked out in a regulatory process.

But Geist said policies for dealing with technology should be created based on known capabilities rather than on “technological fairy dust.”

Data protection lawyer David Fraser agrees.

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“In its current form, it has fundamental flaws that cannot be remedied without a complete overhaul,” he said.

“The technology simply doesn’t exist to enable age verification on a large scale.”

He also raised concerns about the potential reach of the law, saying the definition of “sexually explicit material” could mean it applies to search engines, social media giants, e-book publishers and even streaming services.

“There are significant concerns about freedom of expression,” he said in an interview on Tuesday.

The bill would create a “significant hurdle” for adults wanting to access perfectly legal material such as pornography, he said.

Fraser and Geist both say more hearings are needed in Parliament, but time is running out. Parliament has less than a month before it goes into summer recess.

During his testimony before the committee on Monday, Ripley confirmed the government’s interpretation that the proposed law, as currently drafted, would make it mandatory for services such as Netflix to verify the age of their users.

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“Introducing age verification for these types of services and content would have far-reaching implications for the way Canadians access and use the internet,” he said. “Website blocking remains a highly controversial enforcement tool that presents a number of challenges and could impact Canadians’ freedom of expression, as well as Canada’s commitment to an open and free internet and net neutrality,” he added.

Dufresne raised similar concerns and recommended that lawmakers change the wording to target websites that offer “sexually explicit material” for commercial purposes.

In its current form, the bill could require websites and platforms whose content is predominantly non-sexual in nature to comply with age verification rules, the data protection commissioner said.

Fraser added Tuesday that the companies will likely consider the costs of implementing the proposed law and simply block Canadian access to the content rather than risk liability.

Fraser noted that Pornhub began blocking access to Texas earlier this year after the state, like other states, introduced its own age verification laws.

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The company’s owners oppose the bill and have said it is one of the options they are considering while lawmakers decide what to do with the current Senate bill.

“It’s not designed to protect children. It’s not designed to protect adults,” said Solomon Friedman, partner and vice president of compliance at Ethical Capital Partners, which owns Pornhub’s parent company Aylo.

“It aims to impose the morals of a few ideologically motivated legislators on the rest of the Canadian population.”

The Conservatives, the NDP and the Bloc Québécois voted in favor of the bill when it was last discussed in the House of Commons, while the Liberal government voted against it.

Pornhub’s owners are urging that the responsibility for preventing minors from accessing such sites lies with device manufacturers, not the platforms themselves. They argue that cracking down on individual sites will only push users into darker corners of the internet.

Friedman said his company has asked committee members to give Pornhub executives the opportunity to appear on the floor and speak about the bill and its potential impact.

He said the bill could be “an example of legislators being out of touch with the Canadian public, perhaps for decades, and now trying to deal with the reaction.”

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