Could the Senate bill make age verification laws apply to Netflix? Experts say yes

Canada’s privacy czar and a government official have warned that a Senate bill proposing to block minors from accessing “sexually explicit material” on the internet could apply to streaming services like Netflix.

Philippe Dufresne, the national privacy commissioner, says lawmakers should dramatically narrow the scope of the bill to address concerns about “what will be captured.”

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

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

Experts such as University of Ottawa law professor Michael Geist, who specializes in internet and e-commerce law, say age verification technology simply isn’t there yet and that the “fundamentally flawed” bill raises serious privacy concerns.

Supporters of the bill argue that its goal of protecting minors from sexual and violent material is so important that it should be adopted, and that the technical details should be resolved through the regulatory process.

However, Geist said that rules for dealing with technology should be created based on known capabilities, not “technological fairy dust.”

Privacy lawyer David Fraser agrees.

“As it stands, it is fundamentally flawed and cannot be fixed without a complete overhaul,” he said.

“The technology simply does not exist to enable age verification at scale.”

He also reiterated concerns about the bill’s potential reach, stating that “sexually explicit material” as defined could mean it would apply to search engines, social media giants, e-book publishers and even streaming services.

“There are serious concerns about freedom of speech,” he said in an interview Tuesday.

The proposed law would create a “significant barrier” for adults wanting to access completely legal material such as pornography, he said.

Both Fraser and Geist say more parliamentary hearings are needed, but time is running out. Parliament has less than a month left before the summer break begins.

During testimony before the committee on Monday, Ripley confirmed the government’s interpretation that, under the written proposed law, services like Netflix would be required to verify the age of their users.

“Imposing age verification requirements for this range of services and content would have far-reaching consequences for the way Canadians access and use the Internet,” he said. “Website blocking remains a highly controversial law enforcement instrument that poses a number of challenges and may impact Canadians’ freedom of expression and Canada’s commitment to an open and free Internet and net neutrality,” he added.

Dufresne expressed similar concerns and recommended that lawmakers change the language to target websites containing “sexually explicit material” for commercial purposes.

In its current form, the bill could require websites and platforms where the majority of content is non-sexual to comply with age verification rules, the privacy commissioner said.

Fraser added Tuesday that it’s likely that companies will look at the costs of complying with the proposed law and simply block Canadians from accessing the content rather than face liability.

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

Company owners who are against the bill claim that this is one of the options they are considering when parliamentarians decide what to do with the current Senate bill.

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

“It seeks to impose the morality of a few elected, ideologically motivated legislators on the rest of Canadians.”

The Conservatives, NDP and Bloc Quebecois voted in favor of the bill last time in the House of Commons, while the Liberal government voted against it.

Pornhub’s owners insist that device manufacturers should bear the responsibility for ensuring that minors cannot access such sites, rather than the platforms themselves. They argue that attacking individual sites will only push users into the darker corners of the Internet.

Friedman said his company asked committee members to allow Pornhub executives to appear to discuss the regulations and their potential impacts.

He suggested the bill could be “an example of lawmakers being out of touch with the Canadian public, perhaps for decades, and now trying to deal with that backlash.”