Content warning: This blog post contains descriptions of sexual assault, child abuse, and suicide.<\/em><\/p>\n A protestor<\/a> outside MindGeek office in London, UK.<\/p>\n In December 2020, a New York Times article<\/a> by Nicholas Kristof brought to light the magnitude of child sexual abuse material (CSAM) and pornography depicting illegal non-consensual imagery, such as rape and other forms of sexual violence, found on pornography giant Pornhub\u2019s website. People worldwide were outraged. Pornhub denied the allegations in the article. Visa and Mastercard pulled services from the platform, and companies like Unilever suspended advertising agreements.<\/p>\n Days later, Pornhub removed millions of videos<\/a> from their platform, resulting in a drop in content from 13 million to 2.9 million videos. What remained were videos uploaded by one of two of the website\u2019s official verification programs, content partners or those within the Model Program, which allows users to upload and profit from their own self-made videos. The dramatic effect of this \u2018cleanse\u2019 suggests that the bulk of material was previously uploaded by other, unverified users, often anonymously.<\/p>\n Among the removed videos, many were likely illegal. Titles such as \u201cExtreme Choking\u201d and \u201cScreaming Teen\u201d suggest content containing CSAM, and non-consensual and violent sexual activity.<\/p>\n Currently, Canada\u2019s House of Commons Standing Committee on Access to Information, Privacy and Ethics launched an investigation into MindGeek, the Montreal-based pornography conglomerate and parent of Pornhub. I had the opportunity to review the testimonies of numerous victims in what started as a research task for Allard\u2019s International Justice and Human Rights Clinic, involving review of updates on the MindGeek situation from our partner, the All-Party Parliamentary Group to End Modern Slavery. I ended up personally invested, thinking about my luck and privilege while other girls and women shared stories of how their lives were uprooted after sexual abuse they had the misfortune to experience was shared on Pornhub.<\/p>\n \u201cThanks to Pornhub, today is day 1,292 that I have been naked on these porn sites.\u201d<\/strong>[1]<\/a><\/p>\n Statements like these sent shivers down my spine and I was left angry and sad, wondering how the world\u2019s most popular pornography site was not held responsible or even scrutinized for almost a decade <\/em>under Canadian law. This was just one of many stories shared by victims during the testimonies.<\/p>\n After Serena Fleites reluctantly sent her boyfriend a naked video of herself, it ended up on Pornhub and was widely circulated in her community and on the internet. She was 12<\/a>. A straight-A student, Ms. Fleites quickly spiralled into depression, drug use, self-harm, and multiple suicide attempts. She made extensive efforts to have Pornhub remove the video, but failed. The company placed the burden on her to prove it was her in the video, and that she was under 18 at the time.[2]<\/a><\/p>\n Victoria Galy was unknowingly filmed during sexual interactions, including some while unconscious after being drugged. She found over 60 videos of herself<\/a> on Pornhub at one point. Ms. Galy faced a similar, burdensome content removal process to Ms. Fleites, and after she succeeded in requiring Pornhub to take down several videos, the company refused to remove the rest. As before, Pornhub alleged she had not proven the woman in the videos was her. Desperate to have the content removed, Ms. Galy prepared a detailed PowerPoint slide with side-by-side comparisons of scenes from her abuse with recent photos of herself, highlighting matching tattoos. Yet Pornhub resisted. Ms. Galy tried to serve a notice of a lawsuit against Pornhub, and was brushed off, told to deal with their legal team in Cypress as they claimed to be governed by Cypriot law.[3]<\/a><\/p>\n Similar stories were echoed in other victims\u2019 testimonies. They all experienced difficulties trying to get their videos removed. They all shared the experience of lifelong trauma \u2013 childhoods, livelihoods, and even lives<\/a> taken away.<\/p>\n How did Pornhub operate \u2018above the law\u2019?<\/strong><\/p>\n What went wrong? How did Pornhub and MindGeek enjoy impunity from the distribution of CSAM and other illegal material? That is part of the question that the Ethics Committee is trying to answer.<\/p>\n Corporate complicity<\/u><\/p>\n Much of the testimony provided at the hearings has been conflicting, revealing the extent of Pornhub\u2019s complicity in its content moderation. In Canadian criminal law, \u2018complicity\u2019, referred to in the Criminal Code <\/em>as being a party to an offence by aiding or abetting the commission of the offence, can result in criminal liability. For organizations specifically under section 22.2, an organization is a party to an offence if a senior officer with \u201cthe intent at least in part to benefit the organization\u201d and knowing that \u201ca representation of the organization is or is about to be a party to the offence, does not take all reasonable measures to stop them from being a party to the offence.\u201d<\/p>\n Pornhub CEO Feras Antoon and COO David Tassillo testified before the Committee. Among other things, they claimed they had no knowledge of CSAM on their platform, \u201cjournalists [were] writing whatever they want\u201d, and Pornhub is a \u201cworld leader\u201d in preventing the distribution of CSAM and non-consensual material. They claimed to use multiple screening tools<\/a> with human \u2018moderators\u2019 to detect such material and prevent its circulation. These previous \u2018moderators,\u2019 however, described their job more akin to \u2018formatters\u2019, while<\/p>\n Further, these examples challenge assertions that Pornhub \u201ctook all reasonable measures\u201d to stop their representatives from being a party to the offences in question.<\/p>\n Jurisdictional hide-and-seek & the limits of law enforcement<\/u><\/p>\n Pornhub\u2019s Terms of Service, which Ms. Galy was told to follow, indicate Limassol, Cyprus<\/a> as \u201cthe sole and exclusive jurisdiction and venue for any action.\u201d:<\/p>\n When asked about this unusual corporate headquarters, Mr. Antoon stated \u201cwe are clearly living in Canada, we abide by Canadian law for sure.\u201d He swore under oath<\/a> that every instance of CSAM was reported to proper authorities.<\/p>\n The act of perpetrating, producing, or distributing CSAM, trafficking, and other non-consensual and violent sexual material is prohibited under Canada\u2019s Criminal Code. <\/em>Platforms like Pornhub are also obligated to report suspected instances of CSAM to the Canadian Centre for Child Protection (C3P) under the Mandatory Reporting Act<\/a><\/em> (\u201cMRA\u201d). Yet since 2012, no incidents of CSAM were reported to the C3P, contrary to Pornhub executives\u2019 testimony.<\/p>\n The RCMP continues to choose not to act, even after 75 MPs and Senators, over 100 survivors, and hundreds of NGOs sent a letter<\/a> in March 2021 advocating for the launch of a formal criminal investigation into MindGeek and its executives. For over a decade, the RCMP has failed to investigate MindGeek\u2019s non-compliance in reporting instances of CSAM under the MRA, and has not provided an explanation for never beginning an investigation. The RCMP claims one of its main concerns is jurisdiction. MindGeek\u2019s convoluted corporate structure stretching over jurisdictions including Canada, Cypress, Luxembourg, and the US,[4]<\/a> has encouraged law enforcement here and around the world to turn a blind eye on their business practices. It is difficult not to question the motivations behind Pornhub\u2019s multijurisdictional arrangement.<\/p>\n Profit maximization \u2013 at what cost?<\/strong><\/p>\n Pornhub\u2019s complicity has enabled the victimization and traumatization of these women. Abusers and traffickers pocket the financial benefits of distributing sexual abuse material and often walk unaffected by the legal consequences of their acts. Meanwhile, the company has reaped the majority of profits from having these videos viewed, downloaded, and shared, millions <\/em>of times. If the graphic descriptions of the material appalled me, the realization that Pornhub was profiting \u2013 vastly \u2013 from the distribution of CSAM and other harmful, illegal material, disgusted me further.<\/p>\n Mr. Antoon is building his third known property, a massive mansion<\/a>, that required a special municipal permit to cut down 220 trees from a heritage forest.<\/p>\n Pornhub CEO, Feras Antoon\u2019s mansion. <\/em>Photo from Google Earth.<\/p>\n In stark contrast, victims like Ms. Fleites bear the socioeconomic costs of abuse, including being unable to return to school or work because of stigma, post traumatic stress disorder (PTSD), and other mental illnesses, which has led to their loss of financial security.<\/p>\n Serena Fleites, photographed living out of her car. Until recently, her victimization rendered her homeless<\/em>. Photo by Rachel Bujalski for the New York Times.<\/p>\n What\u2019s next?<\/strong><\/p>\n In April 2021, Kristof published a follow-up article<\/a>, showcasing an uncomfortably familiar thread of stories from survivors, but this time relating to XVideos, Pornhub\u2019s nemesis. Allegedly, \u201cmillions of outraged customers\u201d turned to XVideos after Pornhub\u2019s \u2018cleanse\u2019 in December. Increasingly, awareness is being drawn toward the multifaceted nature of the harm being perpetuated by pornography distributing companies. It is clear that an entire industry is operating with impunity under the law.<\/p>\n It is no surprise that multinational corporations have been profiting from illegal and harmful acts, violating human rights and destroying lives. When convoluted corporate structures meet sophisticated online players with algorithms seemingly out of reach of law enforcement and lawmakers, the problems compound. Adding insult to injury, thus far platforms that host user-generated content enjoy impunity. For example, Pornhub\u2019s Terms of Services<\/a>, which were updated following the Times article in December, claim to relieve them of liability for content posted by users:<\/p>\n There are clearly gaps that need filling in the legislative framework to hold companies accountable for distributing CSAM: laws requiring internet content hosting companies to proactively gatekeep what gets shared on their platform. Requiring producers to verify the age and ongoing consent of all individuals appearing in pornographic content, would prevent the uploading of illegal material. The US introduced a bill<\/a> in December that does this, but Canada continues to lag behind. The egregious impacts on victims that multiply once their videos are viewed millions of times are profound, and platforms like Pornhub make this level of harm possible. It is thus imperative for Parliament to adopt proactive <\/em>legal approaches to adequately protect victims and the public at large from the creation and consumption of such harmful content.<\/p>\n In addition to the pornography distributing industry, a larger issue, and one that is only beginning to be scratched at the surface, is how Google and other search engines have \u201cbolstered\u201d the impact, growth, and popularity of platforms like Pornhub and XVideos. Kristof\u2019s recent article<\/a> delves into this a bit more.<\/p>\n Final thoughts <\/strong><\/p>\n Stricter regulation of the pornography distributing industry can promote corporate accountability, but all stakeholders have a responsibility to recognize the reality surrounding the creation, distribution, and consumption of CSAM and other illegal sexual material. Companies like MindGeek and XVideos were able to act with impunity for years because of pervasive rape culture and society\u2019s continuing acceptance of discrimination against and commodification of women. The principles of equality underlying the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which Canada has signed, prohibit this behaviour. It is time for Canada, the international community, and ourselves, as individuals, to take these obligations seriously and end the immunity for online platforms that facilitate and profit from the sexual abuse of women.<\/p>\n <\/p>\n Christine Yan is a 2L student at the Peter A. Allard School of Law working with the IJHR Clinic as part of the All-Party Parliamentary Group on Modern Slavery Team.<\/em><\/p>\n <\/p>\n [1]<\/a> Ethics Committee testimony by anonymous victim, February 19, 2021, from ParlVu.<\/p>\n [2]<\/a> Ethics Committee testimony by Serena Fleites, February 11, 2021, from ParlVu.<\/p>\n [3]<\/a> Ethics Committee testimony by Victoria Galy, February 19, 2021, from ParlVu.<\/p>\n![\"\"](\"https:\/\/blogs.ubc.ca\/ijhr\/files\/2021\/04\/christine-yan-photo-1-300x210.jpg\")
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