But the age verification requirements raise 'serious constitutional concerns' and pose 'unacceptable privacy risks,' a law professor says
A Senate committee amending the Liberal government’s controversial Bill C-11 has added the requirement for online platforms to verify age of users accessing pornography, a move internet law experts said was likely unconstitutional.
The surprise move came Tuesday morning, when Sen. Julie Miville-Dechêne proposed an amendment stating that “online undertakings shall implement methods such as age-verification methods to prevent children from accessing programs on the Internet that are devoted to depicting, for a sexual purpose, explicit sexual activity.”
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The committee passed the amendment, with seven senators opposing it, five voting in favour and two abstaining. The amendment was supported by Conservative senators who have been some of the most vocal critics of Bill C-11’s potential to affect freedom of expression, including committee chair Leo Housakos, while Sen. Marc Gold, the representative of the Liberal government in the Senate, opposed it.
The amended version of the legislation must be approved by the full Senate and then go back to the House of Commons before it becomes law. It if does pass into law, it would be up to the CRTC to decide how to implement the age verification requirement.
“The age verification requirements added to Bill C-11 today raise serious constitutional concerns,” said University of Ottawa law professor Vivek Krishnamurthy.
“Everyone wants to protect children from age-inappropriate content, but requiring Canadians to prove their age before accessing such content poses unacceptable privacy risks.”
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He said the amendment “interferes with the rights Canadians enjoy under the Charter and international law to access information anonymously.”
University of Ottawa law professor Michael Geist said on his blog Tuesday that if the amendment survives the rest of the legislative process, he doesn’t “see how it survives a constitutional challenge.”
“Depending on how the CRTC implements the policy, this could require age verification to access services such as Twitter and Google, which both enable access to this form of content,” Geist said on his blog.
Bill C-11 sets up the CRTC to regulate platforms like Netflix and YouTube, with the idea that they would contribute to the creation of Canadian cultural content. It has drawn controversy over potential regulation of user-generated content, but the concept of adding age verification requirements wasn’t part of the debate, or the bill, until Tuesday’s amendment.
However, Sen. Miville-Dechêne has previously proposed similar legislation. During a 2021 Senate committee hearing on a different bill introduced by Sen. Miville-Dechêne, the then-privacy commissioner said it could result in a number of privacy concerns.
Daniel Therrien said at the time that if adequate privacy measures aren’t taken, the age verification process “could increase the risk of revealing adults’ private browsing habits.”
Emily Laidlaw, a law professor at the University of Calgary, also told senators at that same 2021 meeting that the proposed legislation was “a free expression concern, because it creates a high bar for adults to access legal content.”
