The COVID-19 pandemic has exacerbated deep vulnerabilities in the sex industry – especially among racialized and trans sex workers – while revealing the importance of third-party businesses in sex work. In the virtual world, OnlyFans pushed this discussion into public consciousness with a short-lived ban on sexually explicit photos and videos. But when it comes to in-person sex work, third-party businesses often operate in the shadows, and are rarely discussed. Yet these discussions are essential: websites that host sex worker advertisements – known as escort directories – have great potential to improve the working conditions of sex workers and to generate profits, and a new constitutional challenge to Canada’s sex work laws, launched in March 2021, may enable Canadian-based escort agencies to operate legally in Canada for the first time.
Third-party businesses have historically been forbidden to profit from sex work in Canada. Despite sex workers persistently advocating for decriminalization since the 1970s, legislative change has been an uphill battle. In 2013, the Supreme Court of Canada in Bedford declared Canada’s sex work laws unconstitutional, in part because they prohibited business arrangements that can “increase the safety and security” of sex workers. Harper’s Conservative government responded to the ruling by replacing existing laws with similarly prohibitive legislation – the Protection of Communities and Exploited Persons Act (PCEPA) – in 2014. The PCEPA is still in force today and continues to criminalize businesses that profit from in-person sexual transactions.
Unsurprisingly, the PCEPA has sparked criticism from human rights organizations and the Ontario Court of Justice for driving sex work further underground, and thwarting the benefits of collective working arrangements between sex workers and third-party businesses. Herein lies the significance of the March 2021 constitutional challenge brought by several sex worker rights organizations against existing legislation, in the pursuit of decriminalizing sex work. If successful, Canada’s regulatory landscape may, for the first time, become enabling and predictable enough to support the growth of Canadian-based online escort directories.
The extensive influence of escort directories farther afield points both to their importance to sex workers, and their potential to achieve some measure of success in Canada. In the United States, for example, Rentboy – an advertising platform for male sex workers – generated revenues of $10 million over five years; Craigslist’s now-defunct “adult services” section alone generated an estimated $36 million per year; and most recently, escort directory behemoth Backpage gained international popularity and boasted annual revenues of $100 million before being seized and shut down by the FBI in 2018. Importantly, sex workers have noted that widely-used escort directories greatly improved their working conditions, by facilitating contract negotiation with clients, maximizing earnings, eliminating the need for street-based solicitation, and enabling the possibility of thoroughly vetting clients before meeting in person.
Global-scale escort directories have also attracted considerable (and conflicting) attention for their role in human trafficking. Law enforcement and anti-trafficking organizations applauded the sites for helping them locate of victims and simplifying efforts to apprehend traffickers. Conversely, others have lambasted Backpage for creating a centralized nexus believed to increase and even profit from sex trafficking. Backpage’s takedown was partially fuelled by these anti-trafficking efforts, and coincided with the passing of United States Fight Online Sex Trafficking Act and the Stop Enabling Sex Traffickers Act, collectively known as FOSTA-SESTA, which became U.S. federal law in 2018. Many critics of FOSTA-SESTA note that this legislative approach conflates sex work – consensual sexual transactions between adults – with deplorable non-consensual activities related to human trafficking.
The removal of Backpage caused a “mass splintering” of escort directories, decentralizing the world’s most popular advertising hubs, pushing trafficking activities into more obscure online communities, and forcing sex workers to scramble to find alternative sites. After Backpage’s takedown, online forums and discussion groups indicate that Canadian sex workers generally post ads on Leolist.cc, which claims to be “Canada’s classifieds site,” but its domain is registered in the Cocos Islands and the site’s administration is based in Warsaw, Poland. While “not well-liked” by its users, Leolist remains one of the only hosting sites available.
There are several potential benefits to enabling Canadian-based escort directories to grow in a decriminalized environment. Firstly, with more directory options to choose from, sex workers would be able to exercise consumer preference as the sites’ primary customers, guiding directories to offer services better suited to their needs. In turn, Canadian-based directories may be more attuned to the particularities and nuances of sex work in Canada. Sex workers may even elect to launch their own sites: for example, Tryst.link, an Australian-based directory, is explicitly by-and-for sex workers, and provides resources and support for sex workers in “LGBTIQA+ communities and communities of colour” who are disproportionately affected by violence and stigma.
Permitting Canadian-based escort directories would also bring their business activities into the realm of Canadian corporate regulatory frameworks, making existing enforcement mechanisms accessible to sex workers themselves. For instance, recently heightened interest in ESG may encourage escort directories’ corporate board composition to welcome sex workers, further incentivize escort directories to pursue socially responsible activities in line with human rights principles, and to take specific measures to identify and prevent human trafficking. As corporate stakeholders, sex workers may even leverage the oppression remedy as a tool to ensure that the corporate behaviour of directories respects their needs.
If Canadian-based escort directories are permitted, they may also fall within the ambit of bourgeoning legislation intended to improve corporate conduct. Bill S-211, first introduced in the Senate, Canada’s Upper Chamber, in early 2020 and presently still under review, aims to identify and prevent modern slavery along supply chains. Though the Bill does not apply to businesses that only offer services, it demonstrates a growing awareness of human trafficking, child labour, and other forms of modern slavery in international activities of Canadian businesses, and marks a step towards further legislation for service-based corporations such as escort directories.
As Canada faces the potential for legislative reform, it also faces an opportunity to re-evaluate who can – and should – be in charge of regulating third-party businesses in the sex industry. While those working at the heart of this hotly contested field perhaps have the most to gain, there is one certainty: the significance of decriminalizing sex work extends far beyond the law of sex work itself.