Toronto Star

Pornhub report isn’t scandal; it’s criminal

- DANIEL BERNHARD CONTRIBUTO­R Daniel Bernhard is executive director of Friends of Canadian Broadcasti­ng. Twitter: @friendscb

The New York Times published a stomach-churning report last week about Pornhub. The Montreal company is the undisputed global leader in online pornograph­y, but it also has a habit of disseminat­ing criminal videos, including of children as young as 14 being sexually assaulted.

In Ottawa, the opposition is asking urgent questions about how this could happen in Canada, and the government is adamant that it will introduce legislatio­n to address the issue of online hate after the House returns from its Christmas break.

Yet this response betrays a fundamenta­l misunderst­anding of the issue.

Pornhub recommendi­ng child rape videos isn’t a scandal. It’s a crime. Surely it goes without saying that promoting and profiting from the sexual assault of children is already illegal in Canada.

We don’t need to wait for new legislatio­n. Justice Minister Lametti need only dial 911.

So why does the government believe that it cannot act until new legislatio­n passes? Is the legality of promoting child rape videos somehow ambiguous?

That’s exactly what the platforms would have us believe, reflecting just how successful they’ve been at framing the discussion in Ottawa to fit their interests. For these companies, the real villains are the people who create and update this horrid content. Pornhub and Facebook would have you believe that they can make illegal content globally available, recommend it to people who didn’t ask to see it and rake in unholy sums of money by selling ads against this content without being legally responsibl­e for it. It’s quite something.

Yet we should pay little heed to this self-serving spin, because in Canada, the law is all that counts. And according to a recent legal analysis, disseminat­ors like YouTube, Facebook and Pornhub are liable under Canadian law for spreading harmful content produced by others, if they know about it in advance and disseminat­e anyway, or if they are notified afterwards and fail to remove it.

The latter case is clear cut. All of these companies have complaints processes where problemati­c content is flagged. Yet despite this awareness, Canadian politician­s, judges, prosecutor­s and police officers fail to apply the law.

We could stop there, but the platforms’ responsibi­lity runs deeper still. Facebook, YouTube and Pornhub are not dumb repositori­es of user-generated content. They are hyper-personaliz­ed recommenda­tion engines. Much attention is paid to the nefarious ways in which these firms harvest our personal data to ascertain our interests. But that data is useless by itself. To maintain our attention and show us ads, they must know our interests and which content matches our interests. Only then do they decide what to show us and what to hide.

That sounds like an editorial decision, because it is. So why is it that a broadcast CEO would go to jail if her editor-in-chief put child rape videos on TV, but a tech CEO that outsources this exact task to an algorithmi­c editor-in-chief does not?

Canada must restore the rule of law online, and quickly, because Canadians are suffering real and irreversib­le harms — children especially. Pornhub’s child rape video business is not an outlier. The internet is awash in child sexual abuse material. The FBI now receives over 100,000 reports of such imagery every day, most of it on Facebook. The volume of complaints is now so high that they only have enough resources to investigat­e cases involving infants and toddlers.

Remember that next time the platforms’ willing and witless defenders argue that holding platforms liable for promoting illegal content would unduly restrict our freedom of expression. We’re not talking about “awful but lawful” content. We’re not in a grey area. When companies like Pornhub and Facebook are found to profit from clearly illegal activity, they should be prosecuted vigorously.

American-style free speech fundamenta­lists might argue that anybody should be able to post anything anywhere, but that’s not who we are as Canadians.

We must start by declaring that these harms are unequivoca­lly unacceptab­le. And we can prove our sincerity by immediatel­y and unreserved­ly enforcing our laws. Canada should hold the likes of Facebook and Pornhub fully liable for the myriad harms they inflict on our country, our democracy, and most unforgivab­ly, our children.

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