Mandatory Reporting of Internet Child Pornography by Persons Who Provide an Internet Service Now Law

On December 8, 2011, the federal Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service (formerly Bill C-22) came into force. The new legislation aims to protect children from online sexual exploitation, by requiring suppliers of Internet services to the public to:

  • Report tips they receive regarding websites where child pornography may be publicly available to the Canadian Centre for Child Protection
  • Notify police and safeguard evidence if they believe that a child pornography offence has been committed using an Internet service that they provide

This includes where the supplier or its employee has “reasonable grounds to believe” the Internet service is being used for this purpose. Suppliers of Internet services include companies that provide access to the Internet, email services, content hosting and related services, and social networking sites; for example, AOL, Windows Live, Facebook, Twitter, Reddit, Google, Yahoo, Gmail, Hotmail, Dropbox, and so on.

This legislation strengthens Canada’s ability to detect potential child pornography offences. It will help authorities identify, apprehend and prosecute offenders and reduce the availability of online child pornography. Most importantly, this legislation will help identify the victims so they may be rescued from sexual predators.

What does this mean in practical terms?
The first duty the law imposes on service providers is to report to a designated agency any Internet address that is brought to their attention as possibly containing child pornography. To be clear, they are required only to report the Internet address; the designated agency will take it from there.

At that point, the designated agency would determine if the Internet address actually leads to child pornography, as defined by the Criminal Code (see definition below). Subsequently, the agency would establish the geographic location of the web servers hosting the material. Once it has confirmed the nature of the material and its location, the agency would contact the appropriate law enforcement authorities for action.

The second duty on service providers is to notify police when they have reason to believe that a child pornography offence has been committed using their Internet service. For example, if, while conducting routine maintenance of its servers, an email provider discovers that the mailbox of one of its users contains child pornography, the email provider would be required to notify police.

The service provider would be obligated to preserve the evidence for 21 days after notifying authorities. This provides police with a reasonable period of time to obtain a judicial order for further preservation or production of the evidence. After the expiry of the 21-day period, unless it is extended by a court order, the service provider would be required to destroy any information that would not be retained in the ordinary course of business.

Some definitions to understand
The Canadian Centre for Child Protection is a charitable organization that operates, Canada’s national tip line to report online sexual abuse of children. processes some 600 reports a month relating to the sexual exploitation of children online.

“Persons” is defined in the law to include individuals, corporations, partnerships, unincorporated associations or organizations.

Section 163.1 of the Criminal Code prohibits the production, distribution, sale and possession of child pornography, which is defined as follows:

  • The visual representation of explicit sexual activity with a person who is or who is depicted as being under the age of 18
  • The visual representation, for sexual purposes, of persons under the age of 18
  • Any written material advocating or counselling sexual activity with a person under the age of 18

Internet child pornography takes the form of images, sound recordings, videos, drawings or accounts of sexual assaults on persons under the age of 18.

Enforcement and failure to comply
Providers of Internet services won’t be required to monitor their networks in order to find child pornography or to investigate the activities of their users. They will not be required to confirm the content of an Internet address after they have received a tip.

The law has been tailored to limit duplicate reporting for those who are already required to report child pornography under the laws of the province or jurisdiction in which they operate. The Act has been designed to work in concert with those provincial and foreign jurisdictions that have already introduced, or are in the process of introducing, similar mandatory reporting requirements. For example, in Canada it includes or will include Manitoba, Nova Scotia, Ontario and Alberta. In addition, this law will complement existing measures to protect children against sexual exploitation, including tough sentences in the Criminal Code for child pornography offences.

Failure to comply with the duties set out in this legislation constitutes an offence punishable by summary conviction with a graduated penalty scheme. For individuals (sole proprietorships), the maximum penalty is a fine of $1,000 for a first offence, $5,000 for a second offence, and for third and subsequent offences $10,000 or six months imprisonment, or both. For corporations and other entities, maximum fines are $10,000 for a first offence, $50,000 for a second offence, and $100,000 for third and subsequent offences.

Hopefully, the new Act will perform its intended function, helping law enforcement agencies find and investigate cases of child pornography and charge the individuals involved. And hopefully, the Act strikes an appropriate balance between providing valuable information to officials and maintaining citizens’ privacy. We will watch closely to find out how successful the law is and whether the new obligations place a burden on organizations.

This is my last post before the holidays.

I am wishing you a Merry Christmas and all the best for the New Year!

Je vous souhaite un Joyeux Noël et une bonne et heureuse année!

See you in 2012!

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