Bill S-210, also known as the Protecting Young Persons from Exposure to Pornography Act, is a legislative proposal in Canada aimed at restricting young people's online access to sexually explicit material. The bill makes it an offence for organizations to make sexually explicit material available to young persons on the Internet.
Concerns about the bill are not with its intent but rather with the introduction and potential expansion of measures to enforce age verifications across all mediums and how these measures could hinder individual privacy and human rights. Will the implementation of such a Bill grow to include social media, advertising, chat forums, etc.? Senator Julie Miville- Dechêne suggested this in a recent Law Bytes podcast with Micheal Geist.[1]
Other countries such as France and Australia have attempted to impose similar requirements; however, both experiencing “technical difficulties” in execution. The Australian government decided to forgo the requirement, citing that “… each type of age verification or age assurance technology comes with its own privacy, security, effectiveness or implementation issues”[2] . After the government of France adopted a similar law, they “notified the European Commission to ensure that this legislation complies with EU law. On 25 October 2023, the Commission issued an opinion against this bill, in order to express its great dissatisfaction. In particular, according to the Commission, age verification on entry to online platforms is contrary to the (Digital Services Act) DSA insofar as this requirement would be applied to foreign platforms.”[3]
Neither legislation appears to have fully considered the privacy implications such a broad-reaching legislative requirement would have on cross-border data and basic human rights implications.
Digital age verification method(s) do not appear proportional; surely a less intrusive and less broadly worded bill could exist and achieve the desired goal.
To achieve proper balance, more robust stakeholder involvement is needed, one that does not solely rely on one sector’s opinion over another and where those who have the most to benefit do not have a stronger voice.
In this new era of AI, legislators must think more proactively and avoid the quick and poorly thought-out reactive approach to legitimate societal concerns. An excellent first step in achieving proportionality would be the implementation of regulations that REQUIRE proper stakeholder involvement and consultations on legislation aimed at limiting human rights.
Not long ago, the invasion of individual privacy made it into tort law, known as "the intrusion upon seclusion." Privacy is more than what is most commonly known as "informational privacy." Privacy, a quasi-constitutional right, is based on so much more. Other dimensions of privacy, including decisional, behavioural and spatial [4], affect all aspects of everyday life, and any interference would greatly diminish the elements that make up a liberal democracy.
All privacy dimensions deserve proper consideration in legislative drafting decisions. This has never been more important than in the age of Artificial Intelligence and the exponential growth in technology.
Having good intentions is an insufficient justification to bypass thorough consultations. Properly executed, such consultations can not only fulfill the intended objective(s) but also safeguard the democratic rights of all citizens. In today's era of artificial intelligence, privacy now transcends personal choice; we have progressed beyond this narrow perspective, and there is no going back.
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