Ottawa must act quickly on porn sites
Government should ramp up efforts to protect the rights of exploited child victims
In a column in the New York Times, Pulitzer Prize-winner Nicholas Kristof delivers a devastating critique of porn search engine Pornhub. In it, Kristof noted recordings of assaults on women and minors, including a 14-year-old, some where the victims were unconscious.
Pornhub vehemently denies Kristof’s allegations, stating that it has “zero tolerance for CSAM (child sex abuse material).”
Kristof pointedly singled out for criticism Prime Minister Justin Trudeau (who has trumpeted his “feminist” credentials) for his inaction, asking why Canada had not done anything to regulate and restrict the activities of sites such as Pornhub, given that its principals, both of whom are Canadians, as well as its headquarters, are based in Canada.
The shocking lack of regulation in this country of porn sites such as Pornhub brings to light the failed, laissez-faire approach to oversight of the darkest and most evil recesses of the internet where material such as child sex abuse can be found.
The time is now for Canada and other countries such as the U.S. to implement coherent and aggressive measures to combat child sex abuse material by im
plementing an extensive range of measures used in other industries.
This includes aggressively adopting the “gatekeeper” approach of placing a strong legal and ethical responsibility on financial intermediaries to know (and not turn a blind eye to) the activities of their clients.
For instance, in banking, there are already rigorous anti-money laundering (AML) and “know-your-client regulations” that directly place the legal onus on financial institutions (FIs), with the purpose of dissuading them from helping their clients engage in any potential criminal activity.
These reporting and recordkeeping requirements on financial institutions require them to keep reports on their clients’ financial dealings, ownership structure and transactions. For instance, if clients fail to disclose necessary ownership identification information, these financial institutions cannot do business with them.
Kristof detailed the private ownership structure of Pornhub, one of almost 100 porn sites owned by MindGeek, an influential internet conglomerate that is headquartered in Montreal and has offices in Dublin, London, Hamburg, Bucharest, Nicosia, Los Angeles, Miami and San Diego.
For businesses engaged in the online porn industry — where their computer servers, offices, directors, revenues and tax obligations can be simply shifted offshore, where there may be no regulation or oversight — it is even more imperative that financial institutions treat their clients in porn industries with additional scrutiny given the potential for activity around and exploitation of child sex abuse material.
Other financial institutions include wire-transfer services and payment processors such as Visa, Interac or PayPal, which should fall under a “gatekeeper” regime regulating monetary intermediaries.
More importantly, financial
institutions should adopt a voluntary industry-wide code of ethics, meaning they will simply not do business with businesses where child sex abuse material is endemic or its regulation is ineffective. American Express, for example, already refuses to accept payment on digital adult content sites as part of its global policy.
And MasterCard, in response to heightened scrutiny of Pornhub in the Times’ report, recently announced it will no longer allow its cards to be used on Pornhub, after an investigation found what it calls illegal material on the site.
Shareholders and consumers can also revolt and make their voices heard so action is taken.
If the money supply from this source (and FIs) becomes scarce, these businesses have no incentive to allow these activities on their platforms to occur.
The 14-year-old victim, who is now 19, described her life as ut
terly ruined by her appearance on Pornhub, despite making several attempts to turn her life around. The Times’ report alleged MindGeek’s weak moderation and oversight of Pornhub and ability to download and reupload deleted porn videos took away any chance for this victim to rebuild her life.
In response to the public outcry and the likely heightened scrutiny by law enforcement authorities, MindGeek announced new measures on Dec. 8 that Pornhub will no longer enable its users to download content unless they are “paid users” under its “model program,” and that only verified users in the model program may upload content.
That’s simply not good enough. If the moderation does not operate on a “notice and takedown” basis, where offensive content is flagged and immediately taken down, any users can still take screen grabs and videos of controversial or
unmoderated content using legitimate third-party software to upload that offensive content elsewhere.
As well, despite these announced measures, they fail to deal with the seriousness of an entire exploitative industry and other sites where CSAM can go underground to the Dark Web, or sites in jurisdictions without effective law enforcement or laws.
This victim attempted to end her life. To have a child’s life thrown into a spiral of despair because of commercial exploitation and an alleged failed oversight mechanism, makes it urgent for Canada and other countries like the U.S. to implement a comprehensive and statutory “right to be forgotten” for the victims.
Canada’s courts have moved to recognizing this right, albeit with mixed results. The Supreme Court of Canada ruled in “Equustek” that a Canadian court can provide a takedown order requiring Google to remove (or delist) specified content from its online search lists.
While Google had refused to remove the content in this case, a U.S. court allowed it to still remain in the U.S. as a matter of “free speech” and American sovereignty.
Companies such as Google have a financial incentive to fight the removal of content on their lists as the proliferation of content drives user traffic, views and advertising revenues. (Sadly, Kristof noted that Google returned 920 million videos when the words “young porn” was used.)
In the European Union since 2014, the right to be forgotten also means the “right to erasure,” which allows users the right to have search engine links to sensitive content about themselves to be deleted.
This measure is long overdue in Canada.
The right to erasure should apply to users that file complaints directly to sites such as Pornhub that they must take down content and ensure it does not return.
If these sites should fail to erase content when requested, they deserve no legal protection under net neutrality rules, including in Canada or the U.S., including under s. 230 of the U.S. Communications Decency Act.
Finally, transparency is ultimately key. People’s behaviours change when they feel anonymous and unaccountable. It is time for Canada to require all users of such sites to declare who they are if they wish to upload content, so they may become accountable for child sex abuse material.