Canada

Once captured by the law – sites that deliberately transmit pornographic materials to minors and do not use government-approved age verification or age estimation technologies – the enforcement side kicks in. The enforcement of the bill is left to the designated regulatory agency, which can issue notifications of violations to websites and services. Those notices can include the steps the agency wants followed to bring the site into compliance. This literally means the government via its regulatory agency will dictate to sites how they must interact with users to ensure no underage access. If the site fails to act as instructed within 20 days, the regulator can apply for a court order mandating that Canadian ISPs block the site from their subscribers. The regulator would be required to identify which ISPs are subject to the blocking order.

Bill S-209 is better than its predecessor as it seeks to exclude search and other incidental distribution, adopts a new standalone definition for pornographic materials, and sets a higher bar for the technology itself. Yet many concerns remain: the bill still envisions court ordered website blocking, including blocking access to lawful content by those entitled to access it. In fact, the bill expressly states that the effect of the blocking may “have the effect of preventing persons in Canada from being able to access material other than pornographic material made available by the organization.” Orders that knowingly block lawful content is certain to raise Charter of Rights challenges.