Bill S-209: An Act to restrict young persons’ online access to pornographic material

Short Title Short title 1 This Act may be cited as the Protecting Young Persons from Exposure to Pornography Act . Interpretation Definitions 2 The following definitions apply in this Act. Internet service provider means a person that provides Internet access, Internet content hosting or electronic mail. ( fournisseur de services Internet ) making available includes transmitting, distributing or selling. ( rendre accessible ) Minister means the minister designated under section 3. ( ministre ) organization has the same meaning as in section 2 of the Criminal Code . ( organisation ) pornographic material means, with the exception of the material referred to in the definition of child sexual abuse and exploitation material in paragraph 163.1(1)(a) of the Criminal Code , any photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, that (a) shows the genital organs or anal region of a person engaged or depicted as engaged in explicit sexual activity ; and (b) is intended to cause sexual excitement. ( matériel pornographique ) prescribed means prescribed by regulations. ( Version anglaise seulement ) young person means an individual who is under 18 years of age. ( jeune ) Designation of Minister Order designating Minister 3 The Governor in Council may, by order, designate any federal minister as the Minister responsible for this Act. Purpose Purpose 4 The purpose of this Act is to protect public health and public safety and, in particular, to (a) protect the mental health of young persons by restricting their access to pornographic material; (b) protect Canadians — in particular, young persons and women — from the harmful effects of the exposure of young persons to pornographic material, including demeaning material and material depicting sexual violence; and (c) deter organizations that make pornographic material available on the Internet for commercial purposes from allowing young persons to access that material . Offence Making pornographic material available to young person 5 Any organization that, for commercial purposes, makes available pornographic material on the Internet to a young person is guilty of an offence punishable on summary conviction and is liable, (a) for a first offence, to a fine of not more than $250,000; and (b) for a second or subsequent offence, to a fine of not more than $500,000. Clarification — commercial purpose 6 For greater certainty, for the purpose of section 5, an organization that incidentally provides a service that is used to search for, transmit, download, store or access content on the Internet that is alleged to constitute pornographic material does not make available pornographic material on the Internet for commercial purposes. Defence — age verification or age estimation 7 (1) It is not a defence to a charge under section 5 that the organization believed that the young person referred to in that section was at least 18 years of age unless the organization implemented a prescribed age-verification or age-estimation method to limit access to the pornographic material made available for commercial purposes to individuals who are at least 18 years of age. Defence — legitimate purpose (2) No organization shall be convicted of an offence under section 5 if the act that is alleged to constitute the offence has a legitimate purpose related to science, medicine, education or the arts. Defence — compliance with notice (3) No organization shall be convicted of an offence under section 5 if, in relation to the act that is alleged to constitute the offence, the organization has received notice under section 9 and has taken the steps referred to in paragraph 9(2)(c) within the period set out in paragraph 9(2)(d). Non-Compliance Notice Designation 8 The Governor in Council may, on the recommendation of the Minister, designate an agency, division or branch of the Government of Canada as the enforcement authority for the purposes of sections 9 and 10. Notice 9 (1) If the enforcement authority has reasonable grounds to believe that an organization committed an offence under section 5, the enforcement authority may issue a notice to them under this section. Content of notice (2) The notice must state (a) the identity of the organization; (b) that the enforcement authority has reasonable grounds to believe that the organization has committed an offence under section 5; (c) the steps that the enforcement authority considers necessary to ensure compliance with this Act; (d) that the organization must, within 20 days after the notice is issued, take the steps referred to in paragraph (c); (e) that, if the organization fails to take the steps referred to in paragraph (c) within the period set out in paragraph (d), the enforcement authority may apply to the Federal Court for an order requiring Internet service providers to prevent access to the pornographic material by young persons on the Internet in Canada; (f) any appropriate information in relation to a system of administrative monetary penalties made by regulation under paragraph 12(1)(c); and (g) that the organization may make representations to the enforcement authority in relation to any element of the notice within the period set out in paragraph (d). Application to Federal Court 10 (1) If an organization that receives a notice under subsection 9(1) fails to take the steps referred to in paragraph 9(2)(c) within the period set out in paragraph 9(2)(d), the enforcement authority may, within 20 days after the day on which the period ended, apply to the Federal Court for an order requiring Internet service providers to prevent access to the pornographic material by young persons on the Internet in Canada. Respondent (2) The enforcement authority that applies for an order under subsection (1) must name, in addition to the non-complying organization, any Internet service provider who would be subject to the order as a respondent to the proceedings. Hearing in summary way (3) An application made under subsection (1) is to be heard and determined in a summary way in accordance with any special rules made in respect of such application under section 46 of the Federal Courts Act . Order (4) The Federal Court must order any respondent Internet service providers to prevent access to the pornographic material by young persons on the Internet in Canada if it determines that (a) there are reasonable grounds to believe that the organization that has been given notice under subsection 9(1) has committed the offence referred to in section 5; (b) that organization has failed to take the steps referred to in paragraph 9(2)(c) within the period set out in paragraph 9(2)(d); and (c) the services provided by the Internet service providers who would be subject to the order may be used, in Canada, to access the pornographic material made available by that organization. Annual Report to Parliament Annual report 11 The Minister must cause to be tabled in each House of Parliament, within three months after the end of the fiscal year or, if a House is not then sitting, on any of the first 15 days on which that House next sits, a report on the administration and implementation of this Act. The report must include, for the previous fiscal year, (a) the number of notices issued under subsection 9(1); (b) the number of applications for an order made under subsection 10(1); and (c) the outcome of applications made pursuant to subsection 10(1). Regulations Regulations 12 (1) The Governor in Council may make regulations for carrying out the purposes and provisions of this Act, including regulations (a) specifying the circumstances in which pornographic material made available free of charge is not to be regarded as made available for commercial purposes; (b) prescribing the age-verification and age-estimation methods referred to in subsection 7(1); and (c) designating as a violation the failure of an organization that receives a notice under subsection 9(1) to take the steps referred to in paragraph 9(2)(c) within the period set out in paragraph 9(2)(d), establishing a system of administrative monetary penalties applicable to those violations and setting a range of amounts for those penalties. Age-verification and age-estimation methods (2) Before prescribing any age-verification or age-estimation method under paragraph (1)(b), the Governor in Council must ensure that the method (a) is highly effective; (b) is operated by a third-party organization that deals at arm’s length from any organization making pornographic material available on the Internet for commercial purposes; (c) maintains user privacy and protects user personal information; (d) collects and uses personal information solely for age-verification or age-estimation purposes; (e) limits the collection of personal information to what is strictly necessary for the age verification or age estimation; (f) destroys any personal information collected for age-verification or age-estimation purposes once the verification or estimation is completed; and (g) generally complies with best practices in the fields of age verification and age estimation, as well as privacy protection. Administrative monetary penalties (3) In establishing the system of administrative monetary penalties referred to in paragraph (1)(c), the Governor in Council must ensure that any representation made pursuant to paragraph 9(2)(g) is taken into consideration when determining if an organization has committed a violation and in determining the amount of the penalty. Coming into Force One year after royal assent 13 This Act comes into force on a day to be fixed by order of the Governor in Council.