Could a Senate bill cause age verification laws to apply to Netflix? Experts say yes

Privacy Commissioner of Canada Philippe Dufresne takes part in a news conference. (Justin Tang/The Canadian Press)

OTTAWA -

Canada's privacy czar and a government official are warning that a Senate bill proposing to block minors from "sexually explicit material" online could apply to streaming services such as Netflix.

Philippe Dufresne, the country's privacy commissioner, says legislators should dramatically narrow the bill's scope to address concerns about "what will be captured."

Dufresne, along with Owen Ripley, a deputy minister at Canadian Heritage, were the first to testify at a parliamentary committee tasked with studying legislation proposed by Independent Sen. Julie Miville-Dechêne, who also discussed her bill.

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"The bill is highly problematic for a number of reasons, including a scope that is much too broad, both in terms of regulated services as well as regulated content," Ripley testified late Monday.

Experts like University of Ottawa law professor Michael Geist, who specializes in internet and e-commerce law, say age verification technology is simply not there yet, and the "fundamentally flawed" bill raises major privacy concerns.

Proponents of the bill argue its purpose, which is to shield minors from sexually graphic and violent material, is important enough that it should be passed, with the technical details to be sorted out through a regulatory process.

But Geist said policies on how to handle technology should be created based on known capabilities, not on "technological fairy dust."

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Privacy lawyer David Fraser agrees.

"It's fundamentally defective in its current form, and it can't be fixed without a complete overhaul," he said.

"The technology simply doesn't exist to permit age verification at scale."

He also echoed concerns about the potential reach of the bill, saying "sexually explicit material" as defined could mean it applies to search engines, social-media giants, ebook publishers and even streaming services.

"There's significant freedom of expression concerns," he said in an interview Tuesday.

The proposed law would create a "significant barrier" for adults wishing to access completely lawful material such as pornography, he said.

Both Fraser and Geist say more parliamentary hearings are needed but time is ticking. Parliament has less than a month left before it rises for the summer break.

During committee testimony Monday, Ripley confirmed the government's interpretation that as written, the proposed law would make it a rule for services like Netflix to verify the age of their users.

"Mandating age verification requirements for this scope of services and content would have far-reaching implications for how Canadians access and use the internet," he said. "Website blocking remains a highly contentious enforcement instrument that poses a range of challenges and could impact Canadians' freedom of speech and Canada's commitment to an open and free internet and net neutrality, " he added.

Dufresne raised similar concerns and recommended that legislators amend the language so it targets websites providing "sexually explicit material" for commercial purposes.

As it stands, the bill could mandate that sites and platforms where the majority of content is not sexual in nature comply with age verification rules, the privacy commissioner said.

Fraser added Tuesday it's likely that companies will look at the cost of complying with the proposed law and just block Canadian access to the content rather than risk liability.

Fraser noted that Pornhub began blocking access to Texas earlier this year after it ushered in its own age verification laws, as other states have done.

The owners of Pornhub say blocking access to Canadians is among options it's considering as it tries to persuade parliamentarians to reject an approach for age verification outlined in a controversial Senate bill. The Pornhub website is shown on a computer screen in Toronto on Wednesday, Dec. 16, 2020. THE CANADIAN PRESS

The company's owners, who oppose the bill, have said that is one of the options they are considering as parliamentarians decide what to do with the current Senate bill.

"It's not designed to keep kids safe. It's not designed to keep adults safe," said Solomon Friedman, a partner and vice-president of compliance at Ethical Capital Partners, which owns Pornhub's parent company, Aylo.

"It's designed to impose the morality of a select few ideologically motivated legislators on the rest of Canadians."

The Conservatives, NDP and Bloc Québécois voted in favour of the legislation last time it was in the House of Commons, with the Liberal government voting against.

Pornhub's owners are pushing for device manufacturers to be the ones to bear the onus of ensuring minors don't access such sites, rather than platforms themselves. They argue going after individual sites will only push users into darker corners of the internet.

Friedman said his company has requested committee members give Pornhub executives a chance to appear to discuss the legislation and its potential impacts.

He suggested the bill could be "an example of the legislators being out of touch with the Canadian public, maybe decades out of touch with the Canadian public and now trying to deal with that backlash."

This report by The Canadian Press was first published May 28, 2024.