The sweeping reshaping of our economy and culture by the Internet over the past two decades has created unique problems for policy-makers, who must grapple with how if at all they should respond to some of the Internet’s less desirable consequences. Among these is of course pornography. Its proliferation in magnitude and variety into a multi-billion-dollar phenomenon that can accurately if sadly be referred to as an “industry” was supercharged by the expansion of Internet coverage and speed. Not surprisingly, this has created or accelerated a range of societal problems.
The most nefarious is the industry’s ties to illegal sex-trafficking, including of children. This is a globe-spanning netherworld of destroyed young lives (mostly but not exclusively female), distraught families, debauched purveyors, corruption and violence. It is thoroughly if somewhat clinically described in a paper by Catharine A. MacKinnon, linked above, in the Michigan Journal of International Law: “Pimps are typically paid for the sexual use of the real people who are bought and sold to engage in the sex acts for money that are what most pornography is made of. The pornographers then are paid to repimp these people in the pornography itself, producing sexual pleasure for the consumers and immense profits for the pornographers, which both seek to repeat.”
The large majority of online pornography is certainly believed to comprise consenting adults, and this part of the industry operates mainly in the open. Aging “porn stars” have become virtual household names, while porn-purveyors host scheduled “awards” and even brag about what they claim are philanthropic endeavours. They also tout special software and controls they say are aimed at keeping out any material involving under-aged or otherwise non-consenting participants.
Still, disturbing reports keep resurfacing that such material does get posted by online ventures that operate openly and otherwise legally. Canada itself may not be immune. Hundreds if not thousands of pornographic videos featuring non-consenting participants recently made it onto a gigantically popular, largely Canadian venture called “Pornhub”.
In March – on International Women’s Day – dozens of demonstrators gathered outside some nondescript commercial offices in Montreal to demand closure of that operation, a subsidiary of an even larger multi-media porn purveyor called MindGeek (registered in Luxembourg, with operations in numerous countries). Pornhub had posted content from a U.S. provider, called Girls Do Porn, four of whose employees the FBI last October charged with “sex trafficking by force” of young women. Pornhub removed the content and continued to insist that it follows protocols to avoid such illegalities.
Despite such disturbing revelations, Canadian legislators have remained silent on the issue. It is time for Canadian politicians and activists to consider the harms caused or at least facilitated by the online pornography industry and confront the problem.
Understanding the Context
Since the emergence of online pornography in the mid-1990s, production and consumption of legal and illegal porn have proliferated around the world. “Ease of access, the partial anonymity provided by the Internet, developments in digital photography, issues surrounding the policing of international networks, and the limited risk of detection have all contributed to the exponential growth in its availability,” writes Yaman Akdeniz, Professor of Law at Columbia University’s Human Rights Law Research Center, in his 2016 book, Internet Child Pornography and the Law: National and International Responses. What barely a generation-and-a-half ago might have been considered some of the hardest-core adult porn is nowadays instantly available free of charge even on mainstream search engines.
Most of the content distributed online is “amateur”-produced. This means it is more likely to flout the legal regulations of the relevant jurisdiction. This has made it easier for videos depicting illegal content – such as underage “performers” or non-consenting participants – to be published online.
Prior to this, access to porn was limited to materials and settings that the consumer needed to obtain or visit physically. This included attending movie theatres and “peep shows”, renting video cassette tapes (or, before that, bulky canisters of 8 mm film), or purchasing printed magazines. For decades, the combination of more conservative social norms and laws, the intrinsic seediness and sometimes physical danger of the settings, and the impracticalities of some of the media placed informal but remarkably effective limits on the amount and distribution of porn. The few historical “mainstream” pornography ventures, such as Playboy and Penthouse magazines, seem almost quaint in retrospect, with the formerly world-famous “Centerfold” now reduced to a Wikipedia entry.
The invention of modern web-browsing meant that users could simply open their personal computing device, connect to the Internet and gain near-ubiquitous access to pornographic media. Unlike the material historically accessed in the physical space, online pornography remains predominately unregulated. While young people wishing to purchase a magazine or rent a video would have to provide photo-i.d., today consumers are able to access many of these websites without any system of age-verification.
Pornographic websites are thought to make up 10-30 percent of current Internet content and a large proportion of Internet use. Pornhub alone boasts over 42 billion visits and 6 million video upholds annually. Porn consumption cuts across demographic lines, with some reports suggesting that 64 percent of young people aged 13-24 actively seek out pornography on a weekly or more frequent basis.
The type and content of online pornography also differ from the past. Regular TV, cable and streaming video programs are providing what used to be called “soft-core” porn – the sort of stuff that once populated Playboy. While such material is also sprinkled throughout the Internet, real online porn nearly always features “hard-core” content – uncensored penetrative sex of all kinds, often with multiple participants. Further, most of this content distributed online is “amateur”-produced. This means it is more likely to flout the legal regulations of the relevant jurisdiction. This has made it easier for videos depicting illegal content – such as underage “performers” or non-consenting participants – to be published online.
Understanding the Problem
Pornography’s online proliferation has triggered or at least exacerbated a variety of societal consequences which have come under increased academic scrutiny in recent years.
The impacts on children who are able to access much of this content without having to validate their age are well-documented. For most younger kids, exposure to Internet pornography is believed to be inadvertent, occurring either purely by accident (such as through pop-up advertisements) or by being shown or linked to it by someone else without asking for it. This exposure can cause emotional and psychological harm, such as depressive symptoms, and even troubling effects on a child’s sexual development, including muddling their understanding of consent by increasing their willingness to engage in sexually inappropriate conduct. Sharon Cooper, a forensic pediatrician and faculty member at the University of North Carolina School of Medicine, argues in this paper that children are more vulnerable to sexual harms evident in pornography, such as those portraying a lack of emotional relationship between consensual partners or, in some instances, violence or rape. This is due to their brain chemistry, which convinces children they are actually experiencing what they see.
The problems are far from limited to early exposure of children, however. Numerous studies covering ages 18 and up have revealed evidence of a link between exposure to pornography and male sexual aggression against women. One study of high-frequency adult male porn users showed that such men are more likely to admit they would rape or sexually harass a women if they knew they could get away with it, and concluded they are more likely to perpetrate sexual coercion and aggression. Another study demonstrated increased sexual aggression in the form of teen dating violence among teens who watched violent pornography. A meta-study conducted in 2015 analyzing research from seven countries found statistically significant association between porn consumption and sexual aggression among both males and females.
The porn industry plumbs truly murky depths, however, through its purported links to sex-trafficking. These include pornographic producers actually paying procurers (“pimps”) for the purpose of trafficking victims to be used in pornographic videos, or traffickers enticing women with promises of a “modelling” career or other opportunities, only to abuse them. Trafficked victims are in no position to refuse to participate, and the coercion exercised by the procurers means that, whether below or above a jurisdiction’s age of consent, the victims are legally unable to give consent. Failure to do so would put them at risk of serious physical harm.
Examples abound. Two American men were sentenced to multiple life imprisonment terms in 2012 for sex trafficking after they lured aspiring models to South Florida with the pretense of auditions for roles that never really existed. Instead, they gave the victims alcohol laced with date-rape drugs, then had them engage in on-camera sexual acts. The videos were edited, produced and sold over the Internet. The year before, a Missouri man was indicted for sex-trafficking a 16-year-old, mentally disabled girl whom he would sexually abuse on live Internet sessions. According to the indictment, he would also pimp the girl to others for money, keeping the unwilling victim in line through regular threats of injury or death. He pled guilty and was sentenced to 20 years in prison.
Unsealed copy of the United States District Court Southern District of California’s complaint against pornographers for sex trafficking and conspiracy to commit sex trafficking.
What Are We Doing About It? Not Much
Despite the demonstrable range of harms to participants and consumers of pornography, Canadian governments have done little to address concerns about the online pornography industry. This is partly due to pornographic materials being classified as protected expression under the Charter of Rights and Freedoms.
The 1992 case known as R v Butler became the defining Supreme Court of Canada decision on pornography. In its effectively unanimous decision authored by Mr. Justice John Sopinka, the Court ruled that the creation of pornographic material – even porn bereft of any “plot” or script and entirely depicting sexual activity – at minimum conveys meaning to its creator by nature of its being captured or recorded. This, therefore, is protected expression under section 2(b) of the Charter. The Court did find, however, that limits on pornographic expression could be justified under section 1 when the content was found to be “obscene” – a definition set by the Court to include pornography demonstrating explicit sex with violence or explicit sex subjecting participants to degrading or dehumanizing treatment.
In 2014 the Harper government amended the Criminal Code via the Protecting Canadians from Online Crime Act to stop the unauthorized distribution of intimate images and other forms of “cyber-bullying”. Passed over the objections of the NDP, the new law included provisions criminalizing so-called “revenge porn”.
Canadian criminal law also does little to curb the problems associated with online pornography, although it would seem to provide the necessary legal teeth to go after anything depicting or involving children. Besides prohibiting the creation and online distribution of (the narrowly defined) “obscene” pornographic content, s. 163.1 of the Criminal Code criminalizes showing sexually explicit material to minors for the purpose of luring or trying to induce sexual abuse. Unlike other forms of pornography, all child pornography is deemed dehumanizing, degrading and violent by nature and, therefore, is not protected expression under the Charter.
In 2014 the Stephen Harper government amended the Criminal Code via the Protecting Canadians from Online Crime Act to stop the unauthorized distribution of intimate images and other forms of “cyber-bullying”. Passed over the objections of the NDP, the new law included provisions criminalizing so-called “revenge porn”, in which someone shares intimate images or videos of another adult or teenager online without their consent. The law included complementary legislative amendments to facilitate removing such images from the Internet.
Because videos can be uploaded to porn sites without any proof of consent from those depicted, however, revenge porn victims may not even be aware they are on public display and being “monetized” through in-site ads. Even when the videos are discovered, it can be a lengthy process before they are removed, if at all.
But vastly more damaging than revenge porn is actual human trafficking, usually of women, ripped or lured from their homes and transported surreptitiously, often across continents or oceans, to be handed off to their new exploiters. Globally, reported human trafficking has been increasing in recent years, with over 25,000 cases in 2016 alone. The vast majority is for sexual exploitation. The RCMP has estimated that 600-800 people are trafficked into Canada annually and an additional 1,500-2,200 are trafficked through Canada into the United States. In response, in 2012 the Harper government established the National Action Plan to Combat Human Trafficking, and in 2019 the Canadian Centre to End Human Trafficking launched Canada’s first National Human Trafficking Hotline for tip-reporting and crisis management.
The latest attempts at directly targeting human trafficking into Canada may help combat sexual exploitation that occurs in online pornography. In May, Alberta Premier Jason Kenney formed a new provincial task force to halt human trafficking in the province, while recognizing that sexual exploitation occurs in Alberta against people of all ages, ethnicities and genders. Country music star Paul Brandt, who earlier this year publicly dedicated his life to combating human trafficking, was named task force chair. “Human trafficking is an issue without borders, with perpetrators secretly victimizing the lives of others for profits, which their victims never see,” Brandt stated upon his appointment. “While this is very hard to imagine, it’s even more inconceivable that it happens here in Alberta, but it does.” Other provinces and the federal government could benefit by following suit.
What Can We Do? Lessons from Australia, the United Kingdom and the United States
Other English-speaking countries have been more willing to grapple directly with online pornography. Australia has adopted an uncompromisingly tough anti-pornography policy. There, the Internet is governed under the country’s Broadcasting Services Amendment Act of 1999 (BSA). The BSA’s complaint-based regime requires domestic data servers hosting objectionable content to remove the material upon receipt of a takedown notice distributed by the Australian Communications and Media Authority (ACMA), the government regulatory agency responsible for evaluating complaints from Internet users within the country. Under the BSA’s definitions, all pornographic content falls into a prohibited category, making it an offence for Australian Internet service providers (ISPs) even to host such content.
Canada might wish to steer away from Australia’s clear and seemingly comprehensive censorship approach, however. First, it would be unlikely to withstand a Charter challenge. Second, even if it did survive, it would not likely be effective. Opponents of Australia’s legislative scheme rightly point out the legislation’s jurisdictional weakness. It practically compels Australian pornographers to move their content to offshore servers, where little can be done about it even if the ACMA makes a complaint to overseas law enforcement agencies.
Efforts to restrict access to Internet pornography in the United States have proved mostly fruitless. Analogous to the situation in Canada, this is predominately due to jurisprudence, namely interpretation of the Constitution’s First Amendment guarantee of free speech.
The U.S. Congress has, however, achieved some success in requiring record-keeping by pornographers in order to protect young individuals and other victims from being exploited during production, passing the Child Protection and Obscenity Enforcement Act in 1988. It covers both “original” and “secondary producers” of pornography, which have been interpreted to include those who manage computer sites or services that feature pornographic content. They must retain records demonstrating that all performers were over 18. Despite constitutional challenges, the U.S. Sixth Circuit Court of Appeal in 2009 held the regulations to be constitutional and the Supreme Court declined to hear the case.
Other English-speaking countries have been more willing to grapple directly with online pornography. Australia has adopted an uncompromisingly tough anti-pornography policy. There, all pornographic content falls into a prohibited category, making it an offence for Australian Internet service providers even to host such content.
The U.S. approach might provide a workable and Charter-proof avenue for Canada. Here, individuals currently require only an e-mail address to create an online porn account at sites like Pornhub, upon which they can commence posting content without any verification. Requiring companies such as MindGeek – the privately-owned company that owns Pornhub along with many other “adult” websites and production companies – to keep a catalogue of identification for the individuals in videos they host could dissuade them from hosting questionable content.
The United Kingdom currently has three measures to regulate or restrict access to online pornography. Like Canada, the country criminalizes violent or “extreme” pornography. It requests that ISPs engage in self-regulation to web-block illegal pornographic content. And it requires online streaming services to comply with film classification regulations that block access to content deemed unacceptable. Unacceptable content includes depictions of “age play” (in which one or more parties pretend or appear to be under-age), which might encourage incest or sex with children, portrayal of sexual activity involving a real or apparent lack of consent, and penetration by any object likely to cause physical harm.
The UK recently attempted to move beyond the self-regulatory model through its Digital Economy Act 2017. Passed under Conservative Prime Minister Theresa May, it aimed to address longstanding public concern about the availability of pornography to children and the related long-term harm. Among its provisions were requiring commercial porn sites to implement age-verification systems for users and to block non-complying material. This established a general rule that Internet pornography should not be made available to UK residents without a mechanism to prohibit access to persons under 18. The provision was to be enforced by an age-verification regulator designated by the Secretary of State.
The Digital Economy Act came under withering criticism, however, with the Conservatives being accused of going too far in allegedly censoring the Internet. After Boris Johnson became Prime Minister last year, the government announced it would drop the new law’s key provisions.
Conclusion
Concerns about jurisdictional challenges, opposition to Internet censorship, the sheer popularity and monetary impact of porn and, perhaps, popular embarrassment at being thought socially out-of-step have made it difficult to deal with the problems of online pornography. With the exception of a few individual Conservative legislators, such as Alberta MP Arnold Viersan, and former Manitoba MP Joy Smith, who currently heads the Joy Smith Foundation to combat human trafficking, exploitation and abuse, Canadian politicians are mostly turning a blind eye to sexual exploitation occurring in our communities and online. As a starting point, concerned MPs should introduce regulations (if need be, as private members), including increased record-keeping requirements, for online porn distributors, while continuing to combat sexual trafficking and violence. In doing so, our communities could become safer and the horrific human toll could be reduced.
Devin Drover is a Canadian researcher and writer focused on the intersection of public policy, media and technology. He holds an MBA/JD from Dalhousie University and a B.Sc. (Economics) from Memorial University.
