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At the end of 2020, the New York Times published an exposé on Pornhub, revealing that the site features both child pornography and non-consensual pornography. Not only did the site fail to verify the age and consent of those depicted, but they also failed to remove content when requested.  

In the years since, Aylo (formerly MindGeek), which owns Pornhub and other sites, has tried to rebrand themselves and update various policies. In a recent National Post interview, one of the owners touted improved safety mechanisms, including tools to apparently prevent and remove illegal content.  

But, according to a recent report from Canada’s Privacy Commissioner, the company still fails to adequately verify that uploaded content is legal.  

The Investigation 

Early in 2024, the Privacy Commissioner of Canada released findings from an investigation into Pornhub, related to an incident from 2015.   

A woman had asked the Privacy Commissioner to investigate Pornhub after an intimate video of herself was uploaded to various websites without her knowledge or consent. She eventually learned that the video was online and requested that it be removed. While MindGeek removed the initial content, it continued to be re-uploaded on MindGeek’s websites. Ultimately, she hired a professional service to remove over 700 images on more than 80 websites.  

The Office of the Privacy Commissioner investigation concluded that MindGeek failed to ensure consent has been obtained, did not provide a means of contesting consent or having content removed, and failed to take responsibility for content uploaded to its sites. Not only were these failings obvious in 2015, but the Commissioner found no evidence that these problems have been resolved today.  

Aylo disputes the Commissioner’s conclusions and recommendations and contends that the site is compliant with the law. The Commissioner notes that while Aylo’s policies have improved since 2015, problems remain: “Even if MindGeek’s amended consent practices were implemented perfectly — which they are not …  they cannot constitute a replacement or substitute for direct, express, meaningful consent, and could in fact give a false sense that individuals’ personal information is being protected.”  

Aylo puts the onus of proving consent on the person who uploads pornographic content. Instead, the Commissioner says, Aylo must obtain consent directly from the person depicted to avoid uploading content without consent. While the focus of the report is on non-consensual adult pornography, the Commissioner notes that a policy of verifying consent before content may be shared would also help prevent child pornography on the site.  

The Commissioner’s findings also note that Aylo must take responsibility for content uploaded to its websites. But “instead of taking responsibility for obtaining consent directly from the individuals whose personal information appears in content uploaded to its websites, MindGeek continues to rely on uploaders for that consent, even in the face of overwhelming evidence that this results in the posting of vast amounts of intimate content without consent.” 

Because of Aylo’s failure to comply with the recommendations, the Privacy Commissioner recently applied to the Federal Court for an order to force the company to comply with Canada’s privacy law.  

Bill C-270 

Prior to the prorogation of Parliament, one bill would have addressed this issue in a different way – holding pornography companies accountable through criminal law. Bill C-270 would create a criminal offence for anyone who produces or publishes pornography without first ensuring that a person depicted in it is over 18 and gave their express consent.  

Non-consensual pornography and child pornography are already illegal in Canada. But the criminal law against sharing an intimate image without consent only applies where a person knows that an image is shared without consent or is reckless as to whether it is non-consensual, which does not require platforms to proactively verify that any content uploaded by users is consensual. Companies like Pornhub avoid accountability by putting the onus on people who upload content. There is little incentive for pornography sharing platforms to ensure that uploaded content is legal. That’s a problem that Bill C-270 would fix, by making it an offence to share any intimate image without first verifying consent.  

Governments need to begin holding pornography companies accountable. Unfortunately, Bill C-270 has now died on the order paper due to the upcoming federal election.  

The need to keep pushing 

In addition to Bill C-270, we’ve seen legislative attempts to require age-verification for viewing pornography, and efforts by both the government and the opposition to help protect minors online. We can continue advocating for better laws as we await our next federal government. Use the opportunity during this election period to ask candidates how they propose to protect Canadians from pornography and hold pornography companies accountable for the content they display on their sites.