In short:
- The Mandatory Reporting Act of 2011 has already made it a requirement for “internet services” to report any child sexual abuse or exploitation material they encounter on their platforms to law enforcement.
- The proposed Bill C-16, the Protecting Victims Act,by the federal government plans to amend some of the provisions in the Act to make it more effective and enforceable.
- These proposed changes include:
- Clarification on the definition of internet services
- Defining the service provider’s ‘connection to Canada’
- Increasing the data preservation limit from 21 days to one year
- Centralizing the authority to be notified in such cases
- Additional requirement to submit transmission data to assist the investigation
The federal government has set in motion Bill C-16, the Protecting Victims Act, to introduce multiple reforms to the Criminal Code of Canada as well as to various other laws, such as the Mandatory Reporting Act, the Canadian Victims Bill of Rights, and the Youth Criminal Justice Act. In this article, we will look at the proposed changes mentioned in the Bill with regard to the Mandatory Reporting Act of 2011.
The Mandatory Reporting Act of 2011
The Mandatory Report Act refers to An Act respecting the mandatory reporting of Internet child sexual abuse and exploitation material by persons who provide an Internet service of 2011. As the name suggests, the purpose of the Act was to legally compel the internet service providers to report any child sexual abuse and exploitation material they notice on their platforms to law enforcement officials within a specific timeframe. Bill C-16 proposes certain amendments to some of the provisions of the Act.
A clearer definition of “internet services.”
As things stand now, the “internet services” under the Mandatory Reporting Act were referring to any service providing internet access, electronic mail, or internet hosting. It was not clear whether this definition covers the various app-based and social media platforms most consumers use today. The Bill proposes to amend the definition of the internet service mentioned in the Act as follows.
180 Internet service includes
- a service providing internet access;
- a service providing internet content hosting, regardless of the originator of the content or the manner by which the content is made accessible; and
- a service facilitating interpersonal communication over the internet, including a service providing electronic mail.
Service provider’s connection to Canada
With some of the internet services having their servers located outside of Canada, the scope and jurisdiction of the existing Mandatory Reporting Act in such cases were not clear till now. The Bill proposes more clarity by introducing amendments requiring those service providers with a ‘connection to Canada’ to comply with the Act without fail. The ‘connection to Canada’ is defined in section 181.3 of the Bill.
181.3 For greater certainty, subsections (1) and (2) apply to persons who provide internet services to the public and have a connection to Canada, including because the person
- a) has possession or control of a computer system, as defined in subsection 342.1(2) of the Criminal Code, that is located in Canada;
- b) is a corporation that is incorporated in Canada or whose head office is located in Canada; or
- c) is a partnership or an unincorporated association or organization whose head office is located in Canada.
Preservation of data
The Act currently requires the service provider who submits the notification to preserve the data only for 21 days. To address the concerns of possible loss of evidence because of this short data retention period, the Bill proposes to increase this period to one year.
181.4(1) A person who makes a notification under section 3 must preserve all computer data related to the notification that is in their possession or control for one year after the day on which the notification is made.
Duty to notify the designated law enforcement body
The Act currently requires the service provider to notify any police officer, constable, or officer with the responsibility of maintaining public peace. The changes proposed in the Bill will ensure that such complaints are notified to a single, centralized authority, which will be designated by the regulations.
181.3(1) If a person who provides an internet service to the public has reasonable grounds to believe that their internet service is being or has been used to commit a child sexual abuse and exploitation material offence, the person must notify the law enforcement body designated by the regulations of that fact as soon as feasible and in accordance with the regulations.
Transmission data
The Bill also proposes that in cases of manifestly child sexual abuse and exploitation material being transmitted over the platform, the service provider must submit, along with the notification, all details of the transmission data in document form to assist the investigation of the offence.
181.3(2) If the material related to the offence is manifestly child sexual abuse and exploitation material, the person must include with the notification a document containing any transmission data, as defined in section 487.011 of the Criminal Code, related to the material that could assist in the investigation of the offence.
Conclusion:
These proposed changes will bring more clarity to the mandatory reporting requirements and put in place more effective measures to assist the investigation and to help the victims in their fight for justice. It is worth noting here that the Bill might undergo further changes and amendments before it is finally passed and enacted into law.
How can our criminal lawyer help you?
The criminal law in Canada goes through such changes, both at the federal and provincial levels. At Nanda and Associate Lawyers, our experienced criminal defence team keeps track of all such changes, and we can advise you on your best course of action when faced with such legal situations. If you need more clarity about complying with the mandatory reporting requirements, get in touch with our criminal lawyer today with the specific details of your case.
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