Can Porn Ever Be Ethical?

As a criminal defence lawyer, Solomon Friedman is used to clients with unsavoury pasts and uncertain futures. Accused killers, sex offenders, even an Islamic State recruiter have turned to him for help. His newest client is no less challenging to defend—if not in a court of law, then in the court of public opinion.

Friedman and his associates in a Canadian private equity firm called Ethical Capital Partners completed the acquisition this year of MindGeek, the troubled company that runs Pornhub.com, the world’s best-known adult website, and affiliated sites such as Brazzers.com, Men.com, and Transangels.com. Heading up a venture based on hard-core titles like “My best friend’s mom turned out to be a very hospitable MILF” was an unexpected career twist for someone who once went to Israel to become a rabbi. “Those rabbinical studies shaped my analytical approach. And also, I think, a search for meaning in everything we do,” says Friedman.

That new meaning, for Ethical Capital Partners, is to help create “a safe space for adults to express themselves sexually and to do it in an environment where they’re secure and where vulnerable individuals are protected,” he says. He believes the porn industry is misunderstood and likens fronting the leading name in that industry, and providing a voice to models who appear on its sites, to work he has done defending marginalized clients. “Seeing how terribly sex workers are treated by large institutions, whether they’re banks or social media or the police or the justice system, made it quite natural.”

Taking over MindGeek might seem a big reputational gamble for Friedman and his partners, but Ethical Capital is betting it can transform a business accused of abuse, sexual exploitation, and the trafficking of women and children. It’s a project, Friedman believes, long overdue.

When Ethical Capital Partners began mulling the MindGeek purchase in 2021, the adult industry was under siege and Pornhub, the brand synonymous with it, was directly in the crosshairs. The previous year, conservative columnist Nicholas Kristof had accused Pornhub, in the New York Times, of “monetiz[ing] child rapes, revenge pornography, spy cam videos of women showering, racist and misogynist content, and footage of women being asphyxiated in plastic bags.”

The impact of Kristof’s allegations was immediate. MasterCard and Visa suspended payments to Pornhub. Alleged victims who appeared on the sites launched lawsuits. American legislators restricted access to online porn in several states, some requiring users to provide identification before logging on—a move that potentially threatened a business model dependent on customer anonymity. Pornhub scrambled to take down nearly 10 million videos and images from unverified uploaders. It also moved quickly to update its system for verifying the consent of those who appeared on the platform.

Pornhub is a “tube site,” a streaming service that shares content uploaded by others. It’s similar in concept to the material posted on YouTube—except much more explicit. Although its Brazzers.com brand shoots its own porn in the US, Pornhub is primarily a platform, not a producer. Ensuring that the thousands of videos different providers upload are legal and consensual—in 2022 alone, reports Statista, 2.182 million videos were added to Pornhub—makes running a tube site something akin to a game of Whac-A-Mole. It was a game MindGeek was losing.

The pornography industry is no stranger to crackdowns. In 1985, US president Ronald Reagan appointed his attorney general, Edwin Meese, to study the effect of pornography on society. The Meese commission’s final report, released in 1986, concluded porn consumption was likely to cause “sexual violence, sexual coercion or unwanted sexual aggression.” It also claimed that child porn had become a major part of the industry. The Reagan administration later passed legislation requiring porn creators to keep records on file proving the actors’ age, the so-called “2257 certifications” still in force today.

Porn’s harms quickly became part of the debate. Legislators in Florida revived the idea, in 2018, for the internet age, passing a resolution declaring porn a trigger for mental illnesses and deviant sexual behaviour, particularly among teenagers.

Much of the current opposition to online porn is based on similar but unproven medical claims advanced by conservative evangelicals, says Maggie MacDonald, who sits on Ethical Capital’s advisory board. “They started pushing payment processors to publicly disavow all porn companies. They started pushing senators to table bills that labelled watching pornography a public health crisis,” says MacDonald, a University of Toronto doctoral candidate who studies online porn platforms and has contributed to The Walrus. She describes the health concerns over pornography as a scapegoat. She compares them to attempts to curb violent video games, blamed by some for fostering violent tendencies in youth and causing mass shootings. “It has nothing to do with public health.”

Ethical Capital’s plan to counter this framing was to remake MindGeek as a world leader in online porn safety. Rebranding the company as Aylo, they accelerated reforms to keep kids off the sites and ensure the consent of the models in the explicit videos. The firm won’t say how much they paid for the company, but the deal required Ethical Capital and its unnamed investors to take on the legal liability that still lingered from the MindGeek era, with plaintiffs in multiple lawsuits alleging child abuse and sex trafficking on the company’s sites.

That was no small concession. US juries sometimes award enormous settlements in civil cases, like the $1.2 billion (US) for a Texas woman whose former boyfriend had posted explicit images of her online. Aylo would also be on the hook for any new legal action, like a claim filed in California in October. A group of sixty-one “Jane Doe” plaintiffs alleged horrific abuse by producers of the “GirlsDoPorn/GirlsDoToys” videos that once appeared on Pornhub. Some plaintiffs claimed they were deceived into performing—told the videos would be distributed only on DVDs in Australia—and not allowed to leave the hotel rooms in San Diego where they were recorded. All the imagery cited in the lawsuit predates Ethical Capital’s takeover, but the company was still targeted in a related criminal probe by the US Department of Justice.

In November, Aylo announced that it had entered into a deferred prosecution agreement with federal prosecutors in the Eastern District of New York. These agreements are sometimes used to resolve criminal cases involving corporations, such as the deal between Canadian prosecutors and SNC-Lavalin to end a bribery probe in 2022. To head off the US investigation, Aylo would pay a yet-undisclosed amount of restitution to the victims and agree to an independent third-party monitor to assess its compliance program for three years. As of this writing, the settlement has not yet been filed in court.

“Aylo deeply regrets that its platforms hosted any content produced by [GirlsDoPorn/GirlsDoToys],” Aylo said in a statement. The company claims it didn’t know the release forms from the women featured in the videos were obtained by the producers “through fraud and coercion.”

As ECP works to keep users, creators, and platforms safe through improved content moderation, Friedman says, Aylo is committed to “just outcomes” for victims.

The porn business has always surfed on the first wave of emerging technology, from the VCRs that brought adult movies out of seedy Times Square theatres into the home, to the webcam girls and streaming sex clips that helped create the demand for more bandwidth. Now, Ethical Capital is betting that tech innovation can make adult films safer.

Aylo relies on a variety of tools. It uses a system that allows groups that fight sexual trafficking to monitor the sites and immediately delete content they suspect is non-consensual, without sending victims through a lengthy complaint process. It uses mechanisms to verify the identities of content posters to better ensure that the consent releases they provide are from legitimate sources. Its software checks for the “liveness” of the uploaders via a webcam to ensure they match the identification they provide. Aylo also developed a way to fingerprint videos to identify content that had been previously flagged as inappropriate so it can be blocked if someone tries to post it again. And the company provides resources to content providers on preserving their privacy, advising them to, for instance, avoid shooting videos in front of windows or other backdrops that could give potential stalkers clues to their location.

The partners at Ethical Capital include Friedman’s law partner, Fady Mansour; Derek Ogden, a retired Royal Canadian Mounted Police chief superintendent; and Sarah Bain, a former Liberal Party staffer who has worked on Parliament Hill. They work out of the law firm that Friedman and Mansour still run, in a bland office building across from Ottawa’s courthouse. Ogden liaises with law enforcement and acts as a conduit between police and Aylo’s trust and safety team to investigate non-consensual and child-abuse imagery. Mansour handles legal and regulatory issues. Bain deals with public outreach and communications, sometimes making the company’s case to politicians on legislative matters, including a push for legal changes to help keep children off the sites.

The work of overseeing the porn sites is mostly done from Aylo’s offices in the Mont-Royal area of Montreal, staffed by about 1,000 web developers, graphic designers, and administrative support workers. But it’s not Boogie Nights. The partners don’t spend much work time actually looking at porn (though Friedman spent a week in a company office in Cyprus shadowing staff who screen new uploads). “It looks no different than any other tech company,” he says.

In October, Bain, who registered as a lobbyist on behalf of ECP, pushed Canadian MPs and senators on a plan to make Canada the first country to require device-based age verification. It would force tech giants Google, Apple, and Microsoft to install verification software on their phones and operating systems. The devices would be sold with a default setting to block users from looking at adult content unless they—or a parent—opt in via adult verification. Without a parental sign-off, kids couldn’t pull up Pornhub or other sites identified as adult on their phones or laptops. The plan is likely to provoke resistance from a tech industry already chafing against government regulation.

Ethical Capital believes putting verification on devices could be a more effective check than what most porn sites use and give parents assurance that their kids stay away from smut. It could also be used to verify users of gambling sites or online cannabis and alcohol shops, Friedman predicts. “We do not want a single underage user on our sites,” he says. “Young people should not be learning about sex from porn.” Pornhub has another reason for blocking kids: they don’t usually have credit cards but they still suck up website bandwidth without generating any revenue.

While it lobbies for the change, Ethical Capital and other porn platforms are fighting in US courts against state laws restricting access to adult content. When Texas tried to require porn site visitors to first upload their ID before logging on, porn companies, in an industry trade group called the Free Speech Coalition, went to court to argue the rule violated First Amendment rights. ECP’s court filings allege the requirement is a violation of consumer privacy. “Imagine a gay person in Texas having to give their ID to the government to access gay pornography: to the same government that only twenty years ago tried to criminalize consensual homosexual activity between adults,” Friedman says.

A Texas court issued a temporary injunction striking down the law in August. Faced with similar legislation in Arkansas, Mississippi, and Utah, Pornhub simply blocked access for users with internet addresses from those states.

The takeover of MindGeek and their reforms have made Ethical Partners the public voice of an industry whose management has traditionally chosen to stay in the shadows. Still uncertain is whether there’s a viable business model in a corporate approach. The company won’t say how the mass deletion of a huge chunk of its library has affected its revenues, but some traffic has likely gone elsewhere.

“Certain types of content that some users are going to be looking for no longer are on the sites,” MacDonald says. “Pornhub is not where you would go to consume deep-fake pornography,” she says, referring to the use of artificial intelligence to graft the faces of celebrities into sexually explicit videos. But she thinks the scale of the Pornhub brand, with its reported 130 million visitors each day, will continue to dominate even if it had to purge a huge share of its collection. “It would take a human lifetime to watch all the content on Pornhub anyway. It doesn’t actually matter that much because they still remain so big.”

Friedman believes his approach to ethical porn will ultimately appeal to consumers. “The viewing public wants safe and responsible material,” he says. “To the greater degree that the public is assured that this material is legal and safe and consensual, the greater the acceptance is going to be.”

Friedman pushes the same message to curious friends and colleagues in Ottawa who want to know why he got involved in the adult industry. Among them: his former rabbi, who had seen news reports of the MindGeek deal and asked about the day-to-day business of running a porn company. Friedman told the rabbi about his plan for digital age verification. “He said to me if this is the only thing you’ve accomplished in this project, it’s all worthwhile.”

Glen McGregor

Glen McGregor is a journalist in the Parliamentary Press Gallery, covering federal politics.