Curb your enthusiasm: Why Bill S-210 could mandate CRTC-backed age verification for streaming services like Netflix, Crave and CBC Gem

There is much to be concerned about Bill S-210, a mandatory age verification bill that poses significant risks to privacy and free speech and has incredible support from conservative lawmakers. The bill would mandate age verification technology, which Canada’s privacy commissioner says is of concern for its lack of security, establishes website blocking that government officials say could undermine net neutrality and an open Internet, and extends its broad scope beyond pornographic and includes search and social media. But beyond these concerns, government officials have now focused on another problem: The bill’s definition of “sexually explicit material” effectively covers streaming services like Netflix, Crave, Prime and CBC Gem. As a result, watching shows like Game of Thrones or certain episodes of Curb Your Enthusiasm on a cable or satellite package only comes with a rating and warning, while streaming via Crave would involve a mandatory age verification process.

During a committee hearing earlier this week, Conservative MP Garnett Genuis seemed to think the rules would apply equally both online and offline, but this represents a fundamental misunderstanding of both Bill S-210 and the Criminal Code. Genuis stated:

As for issues related to Art. 171, I look at the Penal Code and try to understand the argument presented here. In the Penal Code, we have one definition of sexually explicit material. The implicit suggestion is that perhaps we could use many different definitions of sexually explicit material at the same time. However, it seems extremely logical to adopt a single definition based on existing case law. As Mr. Bittle suggested, if this definition includes Game of Thrones, then this is already a problem because it already violates the Criminal Code if, as part of committing another crime, a child was to be shown this material. Therefore, you may already be violating the Penal Code if you watch “Game of Thrones” at home for a 16-year-old. This isn’t happening. No one will be arrested and sent to prison for allowing a 16-year-old to watch Game of Thrones. If this isn’t already happening offline, it might suggest that this sweeping reinterpretation of what existing law already says is a bit over the top.

In fact, if Genuis is looking at the Penal Code, he needs to look at it again. In this post, we seek to explain why the government is right to identify the risks the bill poses to online streaming services, which could result in millions of Canadians being required to require age verification if the bill becomes law.

Bill S-210 uses the definition of sexually explicit material contained in the Penal Code in s. 171.1(1):

sexually explicit material means sexually explicit materials within the meaning of Art. 171.‍1(1) of the Penal Code.

Section 5 then states that “any organization that makes sexually explicit material available to a young person online for commercial purposes is committing an offense” Defense is available.”if the act charged as a crime has a legitimate purpose related to science, medicine, education or art.”

First, let us explain why the use of the definition from the Criminal Code is too broad in the context of Bill S-210. The definition of the Penal Code is:

(5) In subsection (1), sexually explicit material means material that is not child pornography within the meaning of Art. 163.1(1) and i.e

(AND) a photographic, film, video or other visual representation, whether produced by electronic or mechanical means,

(AND) depicting a person engaging in, or portrayed as engaging in, explicit sexual activity, or

(ii) the dominant feature of which is the representation, for sexual purposes, of a person’s genitals or anal area or of his or her breasts if the person is a woman;

(B) written materials the dominant feature of which is the description of explicit sexual activity with an individual for sexual purposes; Or

(C) an audio recording the dominant feature of which is the description, presentation or representation, for sexual purposes, of explicit sexual activity with a person.

This is, of course, a very broad concept: a photo of a topless model in a suggestive pose is clearly covered up, as is written or audio material describing sexual activity. But definition doesn’t work alone. Instead, section 171.‍1(1) sets out specific ways in which transmitting sexually explicit material may breach the Criminal Code:

171.1 (1) Any person who uploads, shares, distributes or sells sexually explicit material commits an offense

(AND) a person who is, or according to the accused is, under 18 years of age, in order to facilitate the commission of an offense against him under Art. 153 section 1, art. 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);

(B) a person who is, or according to the accused is, under 16 years of age, in order to facilitate the commission of an offense under Art. 151 or 152, section 160 section 3 or art. 173 section 2 or art. 271, 272, 273 or 280 in relation to that person; Or

(C) a person who is less than 14 years of age or who, according to the accused, is less than 14 years of age, in order to facilitate the commission of an offense in accordance with Art. 281 in relation to this person.

All of this describes the use of sexually explicit material in the context of other sexual crimes. These include exposure, solicitation of sexual activity, permitting sexual activity of minors, incest, child pornography trafficking minors, and several prostitution laws. In other words, it is not a crime to submit sexually explicit material yourself. Contrary to what Genuis claims, you cannot violate the Penal Code just because you show “Game of Thrones” at home for a 16-year-old. It can only become a crime if it is committed as part of other sexual offenses.

For a bill that seeks to create equivalence between offline and online, the use of this definition in the context of Bill S-210 ironically results in age verification requirements being established for streaming content while the same content is There are no such requirements in the broadcast world. The way Canada seeks to limit access to such programs is not through the Criminal Code or general provider liability, but rather through content standards supported by the CRTC, which leads to a classification system.

As noted above, there is a defense in Bill S-210 that would cover sharing sexually explicit material for a legitimate purpose, such as art. However, the site’s willingness to invoke this exception – essentially admitting that it uploaded sexually explicit content in violation of the law but with a legitimate defense purpose – is highly unlikely. The penalties associated with Bill S-210 are significant and even include website blocking. The risk of being blocked by Canadian ISPs and facing stiff penalties if the interpretation of legitimate purpose does not extend to their specific content is something no service could provide.

Moreover, after months of arguing against the CRTC’s involvement in content regulation under Bill C-11, it is astonishing that the Conservatives effectively accept it by doing exactly the same in Bill S-210, where they could ask the CRTC or other bureaucracy appointed by government to determine what the rule covers and what qualifies as a legitimate purpose exception. Does a party that has argued for months with the CRTC making content rulings now really say it should do just that? If Bill S-210 wants to cover explicit instances of pornography, it needs its own definition, not the ill-fitting definition from the Criminal Code. As it currently stands, if the bill is adopted, VolThe Conservatives will move from a party that campaigned against the Netflix tax to one that wants to require Canadians to risk their privacy by verifying age to watch a movie. To paraphrase Larry David, it’s not pretty, pretty, pretty good.