Reprieve for the porn industry: the Paris court postponed its decision on Friday concerning the blocking in France of five of the main websites in the sector, until the examination of appeals concerning the modalities of the restrictions of 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 maneuvers by the sites concerned. It is notably encouraged by several child protection associations and supported by the government.
Now, all eyes are on the Council of State, with which appeals were filed in December 2021 and January 2022 by two of the publishers concerned (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 exonerate themselves from their responsibilities vis-à-vis the youngest with a simple declaration of majority. According to these companies, this text ignores 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 “lack of prior notification of the legislation” to the European Commission, which is supposed to examine the texts likely to impose restrictive measures on companies located in the EU.
“Victory of Right”
The investigation of these appeals is still underway by the administrative judge but no hearing date is scheduled, said the lawyer for the two publishers, Karim Haeri. The postponement of the court’s decision is “a victory for the law”, he also said. “We have not stopped saying for 18 months that the government and Arcom have failed in their most basic legal obligations, that (the law on domestic violence of July 2020) was poorly done, imprecise and incomplete”.
If they were forced to verify the age of their visitors, the five targeted sites estimate their audience loss at “90-95%”, according to a message posted Friday on the XVideos site. In a press release, Arcom took note of the decision, and “will continue to work for the respect by the editors of sites for adults of their legal obligations”.
“An incomprehensible decision”
“Solutions exist to limit the exposure of minors to pornography. It is up to the publisher or host sites to implement them”, supported Friday with 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) resembles a denial of righteousness”.
“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 start of the school year of the bill on digital regulation, carried by the sector minister, Jean-Noël Barrot, and adopted by the Senate. It allows the Arcom to do without the judge. The regulator has 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.
Trusted third party
Even in the event of blocking by telecom operators, it would be possible to circumvent it using 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 online security bill, under discussion in Parliament. In the United States, several states have incorporated into law a verification of the age of Internet users.
In France, a technical solution based on a trusted third party has been presented but is still in the test phase. The Cnil, guardian of personal data, has declared itself in favor of transitional solutions such as the validation of age by the payment card or the analysis of facial features.