Pornhub

Date: March 30, 2021
Classification: UNCLASSIFIED
Fully releasable (ATIP)? Yes  
Branch / Agency: RCMP

Issue:

Sharing of child sexual exploitation and abuse material and non-consensual distribution of intimate images on the online adult entertainment platform Pornhub.

Proposed Response:

Background:

Pornhub is a leading online adult entertainment platform owned by MindGeek. When selecting content to view, users are able to apply filters to identify their preferred content; some of the available categories include references to children and youth. Furthermore, many victims of child sexual exploitation and abuse, whose exploitation and abuse was recorded, have found their material available on Pornhub and flagged the difficulties they face in having the company remove this content. The company is legally registered in Luxemburg and it is unclear if any of the servers are located in Canada. The global structure of the company limits the applicability of domestic laws and the authority of Canadian police to investigate.

By allowing users to download material to their own electronic devices, Pornhub made it impossible to determine where this material may be stored, or prevent it from reappearing and being further disseminated. Pornhub provided users with the ability to upload unverified material, making it possible that the hosted material could include underage persons or non-consensual sexual activities. In December 2020, Pornhub removed the download function and disabled the upload function for most users, which was a positive step to prevent the platform from being used to sexually exploit and re-victimize children.

Legislative Framework

Canada’s criminal law provides comprehensive legal protections against all forms of sexual abuse and exploitation of children, and contains prohibitions against possessing, accessing, making and distributing all forms of child pornography, including where committed via the Internet, social media and/or other technology. Canada’s definition of child pornography (commonly known as child sexual abuse material) includes not only actual depictions of child sexual abuse, but also fictitious depictions, as well as written and audio forms of child pornography that may fuel the market for these materials or normalize this behaviour. The law also prohibits the use of the Internet to communicate with a child for the purposes of facilitating the commission of a sexual offence.

In 2011, Canada introduced An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service. The Act imposes reporting duties on Internet service providers when they are advised of an Internet address where child pornography may be available to the public or if they have reasonable grounds to believe that their Internet service is being or has been used to commit a child pornography offence. The Act recognizes that a person can be in compliance with their reporting obligations if they report under the laws of a provincial or foreign jurisdiction. The Act has been interpreted by many to apply to a narrow definition of Internet Service Providers (e.g. Rogers, Bell), excluding Application Service Providers (internet platforms, social media companies), although this was not the intention when drafted. Online child sexual exploitation material is generally hosted by Application Service Providers.

Since 2015, in order to better protect victims and respond to emerging trends, the Criminal Code also prohibits the non-consensual distribution of intimate images (section 162.1) and empowers the courts to order the removal of intimate images from the Internet (section 164.1). These changes were made to the law by former Bill C-13, the Protecting Canadians from Online Crime Act. Courts are also authorized to order the disposal or deletion of child pornography, voyeuristic recordings, and advertisements of sexual services from print materials or made available through computer systems in Canada, which includes the Internet (sections 164 and 164.1).

National Strategy

The National Strategy for the Protection of Children from Sexual Exploitation on the Internet was launched in April 2004 and renewed on an ongoing basis in 2009. Public Safety is the lead for the National Strategy and partners with the RCMP, Justice Canada and the Canadian Centre for Child Protection (C3P). Public Safety also works with international partners, such as the Five Eyes, to better understand the threat of online child sexual exploitation and to find solutions to better protect children and youth.

RCMP National Child Exploitation Crime Centre and Pornhub

The RCMP National Child Exploitation Crime Centre (NCECC) is the national law enforcement arm of the National Strategy. It is the central point of contact for investigations related to online sexual exploitation of children in Canadian and international investigations involving Canadian victims, offenders or companies determined to be Canadian and are hosting child sexual exploitation material. The RCMP undertakes investigations to track down offenders, identify and rescue victims, and provides training, research and investigative support for municipal, territorial, provincial, federal and international police.

Between June 14, 2020 and March 25, 2021, the RCMP NCECC has received 130 reports related to Pornhub through the National Center for Missing and Exploited Children (NCMEC) in the United States. Of which, 30 have been referred to a Canadian law enforcement agency and 100 were unactionable for various reasons, including material being “age-difficult media” meaning it cannot definitively be ascertained whether the individual is under the age of 18, and therefore did not correspond to the definition of child pornography as per the Criminal Code. As of March 25, 2021, there were no open or ongoing investigations related to Pornhub within the NCECC. In addition to the number of referrals from the U.S. NCMEC, the RCMP is consulting across Divisions and the NCECC, specifically, is consulting Integrated Child Exploitation Units (ICE) in police services across Canada to gain a better understanding of the prevalence of Pornhub-related investigations, as it relates to online child sexual exploitation or other forms of sexually related crimes.

Since the appearance by the RCMP, as well as victims and child-protection organizations, before the House of Commons Standing Committee on Access to Information, Privacy and Ethics, more than 70 Parliamentarians have addressed a letter to the RCMP Commissioner calling for a full criminal investigation into Pornhub’s parent company, MindGeek. The RCMP can confirm that the Commissioner has received the letter from Parliamentarians and a fulsome response will be provided.

With respect to the call for a criminal investigation, this matter is with the RCMP for review and any further action required.

Police independence is an important principle in Canadian criminal law; police officers must be free of political or executive direction or influence when carrying out their core law enforcement functions such as investigations and operations.

Age Verification Issues

A significant challenge within the context of Pornhub, and more generally in the context of online child sexual exploitation is the issue of age verification. As noted above, the majority of reports from Pornhub included “age-difficult media”. Often this is material depicting post-pubescent individuals in which is cannot definitively be ascertained whether the individual is under the age of 18. If it cannot be ascertained that an individual is under the age of 18, the material does not correspond to the Criminal Code definition of child pornography. Investigators utilize the sexual maturation stages to assist them but there are significant variations in terms of when the phases of sexual maturation occur and stages become more difficult to discern as people age. Although Canada has one of the strongest definitions of child pornography in the world, this is a serious issue plaguing any efforts in Canada and abroad to address online child sexual exploitation.

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