No new law required: Federal government has power to crack down on Pornhub using existing powers

TORONTO, DECEMBER 7, 2020 – FRIENDS of Canadian Broadcasting are once again calling on the Federal government to look to existing laws around liability to crack down on online companies, like Pornhub, Facebook and YouTube, who publish, recommend, or fail to remove illegal content on their platforms. This call comes in the wake of a shocking report published in the New York Times last week that asked how Canada could allow a company to profit from illegal content like child sexual abuse material (CSAM).

"Just as media companies are liable for the content they publish, online companies like Facebook and Pornhub are also responsible for the content they host and recommend to their users" said FRIENDS' Executive Director Daniel Bernhard. "Our elected officials don’t need to create new laws to deal with content that is already defined as illegal. They don’t need to police social media, or constrain free expression in any new way. All government needs to do is apply existing laws," he added.

A report, published by FRIENDS in September, builds on a legal analysis provided by libel defence lawyer and free speech advocate Mark Donald. Longstanding common law states that those who publish illegal content are liable for it in addition to those who create it. According to Donald, this liability is triggered when publishers know that content is illegal but publish it anyway, or if they fail to remove it after being notified of it. Social media platforms have long argued that they are simple bulletin boards that display user-generated content without editorial control. However, FRIENDS' analysis shows that these platforms are able to understand and recommend content to users, indicating that these companies maintain editorial control and are responsible under Canadian law when promoting illegal content.

"While these online companies have built in complaints processes, it is their own community standards that dictate whether or not content should be removed," noted Bernhard. "When it comes to illegal content, clearly, these standards are not enough. Our government has the ability to crack down on this behaviour today. The question is whether they have the will to enforce the law on these online platforms."

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Sarah Andrews
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