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Internet age verification law could apply to Netflix, privacy czar says

Officials weigh on legislation aimed at preventing kids from accessing ‘sexually explicit material’
Privacy Commissioner of Canada Philippe Dufresne takes part in a news conference in Ottawa, on Thursday, Feb. 29, 2024. Dufresne and a government official are warning legislators to dramatically narrow the scope of a Senate bill proposing to block minors from accessing “sexually explicit material” online, warning it could apply to streaming services like Netflix. THE CANADIAN PRESS/Justin Tang

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 late Monday at a parliamentary committee tasked with studying legislation proposed by Independent Sen. Julie Miville-Dechêne.

“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 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 an important enough endeavour 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.”

“It’s fundamentally defective in its current form, and it can’t be fixed without a complete overhaul,” said longtime privacy lawyer David Fraser.

“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, e-book publishers and even streaming services.

“There’s significant freedom of expression concerns,” he said in an interview Tuesday.

During the committee hearing late on Monday, Ripley confirmed his own interpretation that as it is 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.

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

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 company’s owners 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.”

Its owners oppose the bill and are instead pushing for device manufacturers to be the ones to bear the onus of ensuring minors don’t access such sites, rather than platforms themselves.

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

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