A great many people in Canada are extremely angry and more than a little embarrassed at the fact that they provide a home and operational base for MindGeek, owners of the world’s largest pornography web sites, in particular Pornhub. That anger rose to a crescendo following the publication of a major article in the New York Times in December. The title of the article was “The Children of Pornhub”.
Self-evidently the good northern folk are not standing idly by gazing into the middle distance, twiddling their thumbs. They are now scrutinising MindGeek from a variety of different angles. And if you need reminding why, just listen to and watch the testimony of two people who appeared earlier this week before the Canadian Parliament’s Standing Committee on Access to Information, Privacy and Ethics. The topic of the hearing? “Protection of Privacy and Reputation on Platforms such as Pornhub”. Roll forward to around 12:28.
The hearing opens with the harrowing evidence of an exceptionally brave young victim, Serena Fleites. Her case was prominently set out in the New York Times piece.
Now 19 years old, when Serena was 14 the person she thought of as her (first ever) boyfriend bullied her into making and sending a sexual video. Then he betrayed her. The video ended up going all around the school, neighbouring schools, and finally on to Pornhub. This was unquestionably an illegal video, containing child sex abuse material. Its publication had catastrophic consequences for Serena. But she did not retreat into the shadows. She fought back. Boy did she fight back.
Disgraceful behaviour
After a protracted initial battle by Serena to get the video removed it kept getting reuploaded. Again and again she had to go through the same hoops to have it taken down. Each time, the delays in removing the material were unconscionable but, as we learn later, often Pornhub might remove the video but they left the tags on so anyone searching on the wider internet for that kind of thing would be brought back to their site. I’ll leave you to think about the “ethics” of that.
Serena reached out to Mike Bowe, a lawyer. He also appears before the Committee, giving detailed, broadly based forensic evidence which he put together, documenting years of deceitful if not illegal conduct by MindGeek.
Bowe’s evidence starts at 12:40. It is utterly astonishing and depressing. Why depressing? Because we also learned later, or were reminded, by the company themselves, they have been in existence since 2007 yet it is only since the article appeared in the New York Times a couple of months ago that they appear, or at any rate say, they are getting serious about dealing with illegal content.
Why anyone would believe anything these guys say is another matter and that applies equally to any so-called “transparency reports” they claim they are going to produce.
If ever there was a case for a strong, independent, legally-based public interest regulator to oversee online companies’ affairs it was made out in the Canadian Parliament this week. Well done to the MPs for keeping at it and well done to the Canadian Centre for Child Protection and others who never dropped the baton.
MindGeek speak for themselves
Mindgeek executives appeared before the Committee yesterday. I note in passing they say they employ 1,800 people (1,000 in Canada) and that 50% of their income is derived from ads. They frequently mention how many people, especially how many Canadians, visit their site as if this somehow gets them off whatever hook the Honourable Members of the Committee might think they are on. Of course it doesn’t. Or maybe MindGeek were threatening the MPs?
“Dudes. We are very popular with your voters . Back off.”
Here is what appears in a newspaper to be a rather full account of what transpired when Mindgeek appeared at the Committee but, please go back to the earlier link, tune in and listen. In particular listen to the MPs’ interrogation. Mr Erskine-Smith absolutely skewered them by asking (around 13:20) one of the simplest and most obvious questions:
“How many times in 2020, 2019, 18 or 17 did individuals reach out to you to ask for a video to be taken down because it had been uploaded without their consent?”
Neither of the MindGeek executives who appeared before the Committee said they knew the number “off the top of their heads”. They could not or would not confirm that Serena Fleites had ever approached them.
They went to a public hearing of the Canadian Parliament and showed complete contempt for its proceedings.
The MindGeek executives made several references to how many social media platforms faced problems with child sex abuse content being uploaded. That is true, they do, but none of the ones mentioned are established with the sole purpose of providing explicit sexual content which inevitably takes you to the edges of legality.
All social media companies have an ethical obligation to guard against illegal content, but if you are a porn based social media company it seems to me the obligation on you is that much higher. It is an obligation MindGeek did not meet.
My scribblings
I had submitted a brief note to the Canadian Committee. In it I focused not on the ethics of porn itself but on the ethics of setting up in and continuing as an online porn business. In the great scheme of things not particularly important, I suppose, but I reproduce it below in case any of you find any of its arguments useful in your ongoing battles.
“To many people the very idea of discussing whether or not a porn site can operate within an ethical framework will seem absurd because the porn industry itself is founded on unethical premises. I do not discuss that point. I limit myself to discussing the behaviour of porn companies, from an ethical standpoint.
It is well established that not everything that is legal is also necessarily ethical. In the case of PornHub, and all commercial online porn companies of which I have any knowledge, what we typically see are investors realising there was a gap or an ambiguity in the law and in public policy then deciding to exploit it.
Many of the investors or their advisers were already in the porn business but all that does is underline the knowing nature of their ethical transgression. This is because, and here my comments apply to amateur and commercial sites alike, they all knew or ought to have known that if they set up as porn providers in the physical world they would have been caught by and would have had to comply with long established and (relatively) effective, enforceable rules.
Thus, by choosing to operate over the internet, they were intentionally or recklessly ignoring and by-passing those limitations and norms. In effect they were smirking and saying “Catch me if you can”.
Cynically latching on to the new libertarian spirit of the internet age they, equally cynically, often donned the cape of free speech and artistic expression when really, all along, at least for the larger commercial players such as Mindgeek who are the main concern of your Committee, it was just about making money. Alternatively porn publishers might claim, or it was claimed on their behalf, they had a valuable role to play in providing sex education. It would be difficult to conjure up a more grotesque proposition.
The policy and legal gap or ambiguity which porn companies exploited emerged solely because the speed of technological change had completely outpaced the capacity of public policy makers and law makers to keep up. Some of the more far thinking porn merchants likely calculated that, eventually, public policy and the law would draw level but they would make a lot of hay while the sun continued to shine.
So while, in most jurisdictions, porn providers may not have behaved illegally, they most certainly behaved unethically.
The reasons which lie behind the previously established real world rules about access to porn did not vanish, nor were they reduced or materially altered just because the mode of delivery changed. On the contrary, the way the internet massively increased indiscriminate and unlimited access rather added to the ethical burden, a burden porn companies failed to discharge.
In the UK we had an analogous child protection problem in the late 1990s and early 2000s when children started using online gambling web sites. The legal age limit for gambling was and is 18. The same as it is to buy porn or go to a public cinema showing porn. Instances of a child being able to place a bet at a racecourse, at a football match or in a bookie’s shop were extremely rare for the simple reason the child could be seen and proof of age demanded. Penalties for failure to comply were severe.
When the internet arrived and gambling companies set up in cyberspace, every one of them acknowledged they were aware that children were using their services, placing bets via debit cards banks issued to account holders aged 12 or above. The gambling companies all said they were “very concerned” about the problem but actually almost all of them did nothing until the law compelled them to introduce age verification.
Once they introduced age verification we never heard of another case of a child simply ticking a box to say they were an adult and proceeding to gamble. The fact that a handful of gambling sites did take some steps to limit children’s access e.g. by disallowing debit cards they knew could be used by children, rather amplified the ethical shortcomings of the majority, who did nothing, claiming that asking everyone to tick the box showed they were doing their best.
The law requiring age verification to be introduced on gambling sites was passed in 2005 and became operative on 1st September 2007. Since that moment no company, or indeed any business providing “adult content” or age restricted goods such as alcohol, tobacco and the like, had an ethical leg to stand on, at least not in any of the many countries where data sources exist which are similar to those in the UK.
Where such data sources do not exist porn companies and others could have invested in creating them as a prior condition of establishing or continuing to do business. Alternatively they could have ceased trading until they had developed an ethically sound system for keeping children away from their sites, and for preventing adults from accidentally landing on their home page. They did not do that. Like the UK’s gambling companies, the world’s porn companies are waiting to be forced to improve their behaviour. I hope Canada succeeds in bringing that about.”
Desiderata 