Threatened with blocking, five porn sites get a reprieve in court

Europe 1 with AFP / Photo credit: ROMAIN LONGIERAS / HANS LUCAS / HANS LUCAS VIA AFP 18:20 pm, July 07, 2023

Reprieve for the porn industry: The Paris judicial court on Friday postponed its decision on the France blocking of five of the main websites in the sector, until the examination of appeals concerning the modalities of restrictions on access to minors. Initiated by Arcom, the audiovisual and digital regulator, this procedure has already experienced several delays, between failures by the administrative authority and delaying tactics of the targeted sites. In particular, it is encouraged by several child protection associations and supported by the government.

Now, all eyes are on the Council of State, with which two of the publishers concerned filed appeals in December 2021 and January 2022 (Webgroup Czech Republic, which publishes Xvideos.com and NKL Associates, which publishes Xnxx), a few months after the publication of the decree specifying that they cannot exempt themselves from their responsibilities vis-à-vis the youngest with a simple declaration of majority. According to these companies, this text disregards the "principle of legal certainty", because it does not specify the measures to be put in place to control the age of visitors while ensuring respect for their privacy. They also point to a "failure to notify the legislation in advance" to the European Commission, which is supposed to examine texts likely to impose restrictive measures on companies located in the EU.

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"Victory of the right"

The investigation of these appeals is still ongoing by the administrative judge but no hearing date is scheduled, said the lawyer of the two publishers, Karim Haeri. The postponement of the decision of the judicial court is "a victory of the law", he said. "We have been saying for 18 months that the government and Arcom have failed in their most basic legal obligations, that (the July 2020 domestic violence law) was poorly done, imprecise and incomplete."

If they were obliged to verify the age of their visitors, the five sites targeted estimate their loss of audience at "90-95%", according to a message posted Friday on the XVideos website. In a statement, Arcom took note of the decision, and "will continue to work to ensure that publishers of adult sites comply with their legal obligations".

'An incomprehensible decision'

"Solutions exist to limit the exposure of minors to pornography. It is up to publishers or hosting sites to implement them, "said Friday to AFP the Secretary of State for Children, Charlotte Caubel. Thomas Rohmer, director of the Open association specializing in "digital parenting", said he was "angry" and denounced "an incomprehensible decision from a legal point of view (which) looks like a denial of justice".

"Justice seems to protect these porn sites and does not protect minors," added Justine Atlan, of the e-Enfance association. The situation should evolve further with the examination at the beginning of the school year of the bill on the regulation of digital, carried by the Minister of the sector, Jean-Noël Barrot, and adopted by the Senate. It allows Arcom to do without the judge. The regulator also issued formal notice to three new sites, including YouPorn, and launched legal proceedings against two other platforms. According to a study by Arcom with Médiamétrie, more than two million minors are exposed each month to pornographic content in France.

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Trusted third party

Even if blocked by telecom operators, it would be possible to bypass it thanks to already existing technical solutions, such as a VPN. The subject goes beyond French borders: the United Kingdom also wants to better filter access to porn sites, with its bill on online safety, under discussion in Parliament. In the United States, several states have incorporated age verification into the law.

In France, a technical solution based on a trusted third party was presented but remains in the test phase. The CNIL, guardian of personal data, has declared itself in favor of transitional solutions such as age validation by the payment card or facial features analysis.