It is an air of deja vu that floated in the courtroom of Paris, Tuesday, September 6, welcoming on its benches lawyers from the French public authority for the regulation of audiovisual and digital communication (Arcom), those of the main French Internet service providers (ISPs), and advice from publishers of pornographic sites.
Three months earlier, on May 24, these same people were brought together to settle the burning subject of the blocking of five adult sites, Pornhub, Xnxx, Pornhub, Xvideos and Xhamster, accused of not effectively preventing minors from accessing pornographic content. But Arcom – born from the merger of the Superior Audiovisual Council (CSA) and the High Authority for the dissemination of works and the protection of rights on the internet (Hadopi) – had suffered a setback at the end of a hearing cut short due to a procedural error: the copies of the subpoenas targeting the ISPs had not been sent to the court in time, and the president had been forced to note that they had lapsed. In practical terms, this means that Arcom had to start the procedure again, and again summon the ISPs to court.
Appeal before the Council of State
Nearly eight months after the media policeman ordered these five sites, among the most consulted in the industry, to comply with French legislation, considering that they were no longer in order, the judicial component progress laboriously. On September 6, the merits could not be addressed during the hearing, a priority question of constitutionality (QPC) having been submitted by the lawyers of MG Freesites, the Cypriot branch of MindGeek representing Pornhub in the case. A similar appeal was filed in parallel before the Council of State.
By rendering obsolete a system adopted around the world, the legislator has made almost all pornographic sites illegal
The case could therefore drag on: on October 4, the court will say whether it is sending the QPC to the Court of Cassation – which would suspend Arcom’s action – or whether it refuses and announces a new date for hearing to decide whether or not to block the sites concerned. At the same time, the court should enjoin, Thursday, September 8, the parties involved – ISPs, pornographic sites and Arcom – to meet around a mediator.
Since the law of July 30, 2020 against domestic violence, publishers of sites presenting pornographic content can no longer be satisfied with a simple box asking users to confirm, in one click, that they are old enough to consult photos. or adult videos. By making obsolete a system overwhelmingly adopted by the industry worldwide, the legislator has, on paper, made almost all of the most visited porn sites illegal. The power was thus given to Arcom to give formal notice to offenders and, in the event that the latter do not comply, to request the blocking of the sites concerned before the courts.
The problem of age control
The National Assembly has given no guidelines on how publishers must now control the age of Internet users, and it is this highly controversial point that crystallizes the discussions. Between security and protection of personal data, the choice of a verification tool for the majority of Internet users is far from easy. This difficulty is precisely one of the main reasons why a legislative project similar to that implemented in France was abandoned in the United Kingdom.
At the hearing, pornographic sites and Arcom passed the buck. Elsa Rodrigues, the lawyer for MG Freesites, in particular, during the hearing, repeated the difficulty of finding a satisfactory solution for checking the age of Internet users, citing in particular reports published by various actors including the National Commission for Computing and Liberties (CNIL), and agreeing that to date there is no miracle technical solution, either from the point of view of reliability or protection of privacy.
On July 26, the commission published new recommendations for publishers of pornographic sites, after having “analyzed the main age verification systems”and repeated, as it had done in 2021, that there was no “no filling solution today” the requirements it has set. While waiting for such a system to be put in place, the CNIL nevertheless points out that temporary solutions can better prevent minors from accessing pornographic sites – such as the use of bank cards – provided that they are not developed by the sites themselves.
Today, lawyers for pornographic sites ask Arcom to provide guidelines and criticize the law for not specifying the means that can be used to comply. “It is not up to the legislator to make a list à la Prévert”replied in court Antoine Beauquier, counsel for Arcom, “You have to respect your obligations. »
Other sites in the viewfinder
The five porn names affected on September 6 could only be the first in a long series of actions. In April, the sites YouPorn and RedTube, both belonging to the galaxy of the Canadian group Mindgeek, were also served formal notice by Arcom, which had had a bailiff note, two months earlier, the lack of compliance with – with respect to the law.
Recently, the media policeman was also seized by several child protection associations, already in the maneuver against several pornographic sites, asking him to give formal notice to the social network Twitter, on the grounds that it also hosts content for adults. “The idea is obviously not to suspend Twitter, but, at the very least, to start the dialogue, which we tried to do in July. And, for now, they have refused it”argued Thomas Rohmer, director of the Observatory of parenthood and digital education (Open), to Franceinfo.