September.12.2022
At a hearing on 6 September 2022, lawyers acting for MG Freesites Ltd. (operators of the Pornhub website), raised a constitutional challenge against a recent law that permits France’s online content regulator (ARCOM) to seek a blocking order targeting websites that fail to prevent minors from accessing online pornography. On 8 September 2022, the tribunal issued a decision requiring all parties to attend a mediation-information session in the hopes of finding a solution. A decision regarding whether to refer the constitutional challenge to the higher court is expected on 4 October 2022.
The French Criminal Code (Art.227-24) makes it illegal to render pornographic and certain other categories of content accessible to minors. By virtue of a law adopted in 2020 (LOI n° 2020-936 du 30 juillet 2020 visant à protéger les victimes de violences conjugales, or the “July 2020 Law”), the Criminal Code provision was amended to make explicit that “the offences provided for in this article are constituted even if the access of a minor to the [content] results from a simple declaration by the minor indicating that he or she is at least eighteen years old”.
In addition, Article 23 of the July 2020 Law empowers ARCOM to issue enforcement notices to offending website publishers, and to bring the matter before the Paris Judicial Tribunal in the event that the publisher does not comply with the notice within 15 days, in order to obtain a blocking order against relevant ISPs but targeting the website(s) in question. An implementing decree, adopted in October 2021, specifies that ARCOM shall assess the effectiveness of tools put in place by websites to block minors’ access to pornographic content and, further, that ARCOM may adopt guidelines concerning these technical solutions (i.e. age verification measures).
Enforcement notices were sent by ARCOM in December 2021 to the following websites: Pornhub, XnXX, Xvideos, Tukif and xHamster, giving them 15 days to implement measures to comply with the Criminal Code. (Further actions have since been initiated against other porn sites.) These sites used age declaration functionality as a means of age verification. The sites did not update their age verification measures within the allotted timeframe and so ARCOM initiated proceedings at the Judicial Tribunal of Paris. After an initial delay caused by a procedural issue, the hearing occurred on 6 September 2022, at which point MG Freesites Ltd, acting as a voluntary intervenor (the order is sought against a number of internet service providers, also present), raised a constitutional challenge (question de priorité constitutionnel). The Tribunal must decide whether the challenge meets the criteria to be sent to the French Cour de Cassation for full arguments. ARCOM’s lawyers argued that it does not.
ARCOM has not released any guidance regarding age verification tools that it would consider sufficient to comply with the French Criminal Code provision. According to lawyers acting for the porn sites, ARCOM also failed to respond to repeated requests to engage in discussions regarding possible solutions. ARCOM indicated that there may be as many viable solutions as porn sites available in France (a figure estimated to be approximately 4 million, according to MG Freesites).
The French data protection regulator (the CNIL) recently published recommendations regarding age verification tools, and in these recommendations stated that there are currently no available solutions that are both effective and privacy preserving. The CNIL analyzed several existing solutions against three criteria:
The CNIL has proposed a solution that it would consider effective and compliant with the GDPR (relying on a trusted third-party solution), but this solution has not yet been built.
Similar observations were also made by PEREN, the French government’s digital think tank, in a report on age verification tools.
At the European level, the European Commission has indicated that it is working to develop harmonized age verification tools as part of its Better Internet for Kids + Strategy.
The constitutional challenge raised by MG Freesites Ltd depends on two arguments:
The decision whether to refer the constitutional challenge to the Cour de Cassation is expected on 4 October 2022. In the meantime, the Tribunal did order the parties to attend a mediation-information meeting, but they are not compelled by law to engage in mediation.