Unlawful Pornography and Corporate Liability in Canada

Unlawful pornography has become far more accessible than ever before. It’s no longer simply on the dark web or anonymous chat rooms from the 1990s. It’s available on search engines, and almost all social media platforms. This has led to a significant increase in the number of pornography offences being committed in Canada and throughout the world. Currently, the Criminal Code in Canada outlines four primary child pornography offences including accessing child pornography, possession of child pornography, making child pornography, and distributing child pornography. The Code also includes the offences of publication, etc., of an intimate image without consent, also known as revenge porn and obscene materials which refers to any material considered to be obscene.

Some websites are created solely to share abusive and illegal content. In addition to child pornography platforms, there are also websites created to share nude or sexually explicit images of adults. One such an example is Anon-IB, shut down by Dutch police three years ago, only to now reappear in another jurisdiction. These platforms are created to allow users to anonymously share sexually explicit images of individuals without consent.

While individuals sharing or accessing unlawful pornography are regularly charged, the companies providing individuals with a platform to view and share unlawful material have flown largely under the radar.

In the past, pornography offences have focused solely on the person who is consuming or creating the unlawful pornographic material. Law enforcement agencies in Canada, the United States and other countries use sophisticated computer experts to track, trace and prosecute those consuming or sharing unlawful pornography online. While individuals sharing or accessing unlawful pornography are regularly charged, the companies providing individuals with a platform to view and share unlawful material have flown largely under the radar.

In recent years, however, there has been growing pressure on internet companies to police the content they host on their servers. For example, popular pornography site PornHub.com recently removed a significant portion of its content after concerns over potential sex trafficking and other illegal content including revenge porn.

For the first time, in July 2020, an Ontario court found an internet company guilty of child pornography offences after their website was found to be hosting child pornography content. YesUp eCommerce Solutions, an internet company offering various services including web hosting, rented out servers to clients who paid to have their content stored.

The Toronto based company had been warned more than 200 times that child pornography material was being stored on servers located inside their data centre. In 2019, an investigation was launched and the company was charged with making available child pornography. Four individuals related to the company were also charged. YesUp and three of the four individuals eventually pleaded guilty to regulatory offences.

While the decision is a step in the right direction, this case calls into question whether the sentences handed down are enough to act as a deterrent. An individual citizen charged with the same offence would face a mandatory minimum one-year prison sentence and up to 14 years in prison. Individuals convicted of lesser child pornography offences including possessing or accessing child pornography will face a minimum of six months in prison, up to a maximum of ten years in prison. An individual charged with revenge porn could face a maximum of five years in prison if they are prosecuted by indictment and a maximum of two years less a day and/or a $5,000 fine if they are prosecuted by summary conviction.

In this case, however, YesUp was fined $100,000 and placed on probation for three years. Three of the four individuals were fined $1,000 each and the charges against the fourth individual were dropped. These sentences are considerably less severe than the penalties imposed on offenders convicted of child pornography offences.

The Office of the Ministry of the Attorney General in Ontario has stated the YesUp decision is intended to act as a deterrent to other internet service providers to ensure they are proactively monitoring the content they host. Although a positive step, the question is whether a $100,000 fine is a sufficient deterrent to change corporate behaviour, or whether it will simply be treated as a cost of doing business.

Service providers in Canada have a duty to monitor the content they host and to take proactive measures to ensure they are not hosting child pornography or other abusive and illegal content. Unfortunately, at this time, the efficacy of the regulation of corporate liability is jurisdiction-specific. This means that there is little to stop a corporation from moving to another jurisdiction where similar laws do not exist as a means of avoiding liability in Canada.