Expert: Dan Pepper - 11/22/2011

Question
Hi,

I am looking at where to start for a adult website in Canada.

I understand that I am legally allowed to produce the material but I would like to know what are my legal obligations.

Can you advise me on where to start and also any contacts I can start to correspond with in Canada, Ontario for my business start up?

--Joe

Answer
Hi Joe,

There are a number of different laws in Canada applicable to pornography and adult content production, both at the federal and provincial level.  

The principal existing sanctions against pornography are found in the criminal law. Section 163 of the Criminal Code creates a number of offences in relation to the fabrication and distribution of “obscene” publications, or to possessing them for the purpose of distribution. It is also an offence to mail obscene matter, or to give an “immoral, indecent or obscene” theatrical performance. These offences may be punished on summary conviction or by indictment, with up to two years’ imprisonment where the latter course is chosen. There is also provision for the seizure and forfeiture of obscene materials.

Central to these prohibitions is the elaboration of what is obscene in section 163(8):

   For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.

The obscenity standard is flexible – it responds to shifts in public acceptance of explicit material. Notwithstanding the theory that it is also national in application, there is potential for considerable variation, because the criminal law is administered by the provinces, which may set different prosecution standards. Finally, the obscenity standard is today quite “liberal.” In media such as magazines or films, where there is little likelihood that those unwilling to view the material will be exposed to it, there is considerable leeway; in other, less discretionary forms of expression, such as television, tolerance is lower.

I have some thoughts about how to get started - feel free to contact me through my website at http://www.adultwebsitelawyer.com and we can discuss.

All the best,
Dan