Presentation
Article co-written with Alexandre Couilliot, Partner, Friedland AARPI
On September 10th, the Paris Public Prosecutor’s Office announced that the pornographic content distribution company “Jacquie et Michel” was the subject of a judicial investigation for rape and organized pimping.
This case originated with the website Konbini, which in February 2020 conducted interviews with several women who had participated in pornographic film shoots subsequently distributed under the “Jacquie et Michel” brand. These interviews prompted several feminist associations, including Les Effrontées, Osez le Féminisme!, and Le Mouvement du Nid, to file complaints denouncing, in particular, non-consensual sexual acts during filming, “abnormal and painful” sexual practices, and “acts of torture, barbarity, and abuse of vulnerable individuals.”
The case, entrusted to the 3rd district of the Paris judicial police, followed the opening of an investigation by the Paris Public Prosecutor’s Office on July 10th. The charges being examined against the content distributor, whose business focuses primarily on developing its “Jacquie et Michel” brand, reveal the legal and judicial conflicts faced by workers in this particular sector.
Jacquie et Michel, an audiovisual content distributor
As a reminder, pornography is currently defined as the filming of scenes in which actors and actresses are paid to perform unsimulated sexual acts within a staged context. It is thus considered comparable to any other audiovisual or cinematographic production, legally regulated by various contracts between the professionals involved: actors, producers, distributors, etc.
Created in 2004, the “Jacquie et Michel” brand, owned by the company Arès, now encompasses around ten separate companies operating a variety of activities, including a dating site, a live show, a video game, the sale of merchandise, and several platforms for distributing pornographic content.
This last business has grown by outsourcing production to third parties, focusing on marketing and distribution, and compensating the rights holders of the videos through royalties.
Legally, Jacquie et Michel’s role in creating audiovisual content places it in the category of content distributor, similar to television channels or other platforms in the same sector such as Dorcel, Union, PornDoe, etc.
The Jacquie et Michel brand has since expanded significantly, multiplying partnerships and sponsorship deals to increase its brand awareness and value. In February 2019, the platform announced a partnership with the Carcassonne rugby team before being rejected by the National Rugby League (LRN), which deemed the deal incompatible with LRN regulations and the family audience attending events.
In March 2020, the Full Motorsport team secured sponsorship from the Ares Group brand for one of its racing cars, before Canal+ announced the arrival in August 2020 of a new channel on its platform dedicated to content broadcast by “Jacquie et Michel.”
Jacquie et Michel frequently faces legal issues
Alongside its growth, the notoriety and sector of activity of the broadcaster “Jacquie et Michel” regularly lead to its involvement or being named in several legal cases.
Filming locations & Airbnb. The company was sued after one of its actresses rented a private apartment for filming through the Airbnb platform in 2017. Discovering the video after the fact, the apartment owner sued the production company, while Airbnb offered partial compensation. Having lost in the first instance in June 2020, the owner decided to appeal against the actress, who had been the official client who booked the apartment.
Pornography and labor disputes. Characterized by the filming of videos with amateur actors and actresses, several people have faced dismissals for appearing in videos distributed by the company. In 2018, a young woman who participated in a video bearing the “Jacquie et Michel” label was dismissed for serious misconduct, her employer having determined that she had damaged the image of her position and her colleagues.
The labor court recognized the abusive dismissal procedure for lack of professional misconduct and ordered the employer association to pay 5,000 euros in damages to the plaintiff.
In September 2019, the Pau Court of Appeal, conversely, upheld the dismissal of a domestic worker at an association caring for maladjusted and disabled minors. The court emphasized the association’s mission to protect the vulnerable young people it serves, a mission that could lead to confusion between the employee, representing authority and necessarily playing an educational role as a mentor and confidant, and the private individual involved in amateur pornography (Pau, September 26, 2019, 16/02284).
How to remove pornographic videos distributed online?
Many actors and actresses quickly find themselves facing the widespread distribution of videos featuring them, which can subsequently cause them considerable harm.
The complexity, even opacity, surrounding the organizations that host and distribute adult content makes it difficult to identify the true owners of the videos and those responsible for obtaining their removal. In the case of Jacquie et Michel, the latter argue that they are merely distributors of content without holding the copyright, which they maintain belongs solely to the video producers who originally created the scenes.
They generally cite the consent and transfer of copyright in the signed contracts, and more broadly, the lack of real control over online content, which is constantly counterfeited and redistributed from various platforms, particularly abroad. Transactions frequently result in the purchase of the video rights from the producer for sums that are generally prohibitive.
Pornography Industry: The Legal Fragility of Signed Contracts
The contractual framework governing professional relationships between the various stakeholders, primarily the actors and the audiovisual producer, can, however, suffer from weaknesses that can legally justify obtaining the removal of content:
Copyright. A major factor limiting actors’ control over the distribution of videos featuring them is that contracts systematically include clauses relating to the exploitation of copyrights granted during filming. It is thus common to find clauses allowing producers to exploit “all attributes of their personality within the framework of a pornographic production,” “on all media known or unknown to date,” “worldwide,” “for a period of 99 years.” The deliberately broad terminology is intended to guarantee producers total freedom in the exploitation of the videos filmed. However, such clauses are open to criticism, legally challenging the very validity of the contract.
Indeed, Article L131-3 of the French Intellectual Property Code stipulates that “the transfer of copyright is subject to the condition that each of the rights transferred be specifically mentioned in the transfer agreement and that the scope of exploitation of the transferred rights be defined in terms of its extent and purpose, location, and duration.”
If the contract were to be voided, the producer would have no rights to the representation of the actors’ images and could be prosecuted for copyright infringement, as payment to the actors does not automatically entail the transfer of copyright.
Furthermore, it prohibits the transfer of the actors’ moral rights as provided for in Article L121-1 of the French Intellectual Property Code, in particular the right to respect for their name, their status, and their work.
Contract Nullity. The validity of contracts under French law is subject to several conditions, including the presence of legally competent individuals consenting to a lawful and definite object. In addition to the reservations that can be invoked regarding the nature of the service—sexual acts, potentially excluded from the scope of the contract—the conditions under which the contracts were signed, the filming process, and the lack of clarity regarding the services required of the actors are all factors that could invalidate the contract on the grounds of vitiated consent due to mistake, fraud, or even physical or psychological duress.
Reclassification as an employment contract. Similarly, while it is common to find clauses stating that “the service does not constitute work: in the absence of direction from the director, the signatory was free to act and speak as she wished, and no relationship of subordination was established,” the reality of the filming can call into question the veracity of this clause, potentially reclassifying the relationship between the actors and the producers as an employment contract.
The Right to Be Forgotten Online, the Right to One’s Image, and the GDPR
The recent consolidation by the General Data Protection Regulation (GDPR) of the means of controlling personal data online offers an additional legal opportunity to obtain the removal of objectionable content from search engines, the primary vectors of content on the internet today.
In the past, Google has been forced to remove links to objectionable pornographic content. In an expedited legal proceeding, the search engine was accused of having “contributed to the moral harm suffered by the woman due to the association of her name with the film in question.”
While she had filmed the videos under a pseudonym, the possibility for her personal or professional network to access the results obtained by typing her name, particularly in conjunction with her pseudonym, constituted a clearly unlawful disturbance. The hosting provider was also obligated to provide all the information at its disposal to identify the publishers of the offending websites.
A former model was also able to demand the removal of erotic photographs, based on image rights, for which the victim had demonstrated a refusal to consent.
The recent complaint also raises a more serious issue concerning the legal status of pornography and its links to prostitution and pimping, which has been denounced for many years by numerous professionals.
Jacquie et Michel: Pornography, Prostitution & Pimping
Certain elements of the ongoing investigation, which indirectly targets the distributor Jacquie et Michel, concern statements that some actors are encouraged or even paid to find new actors and actresses. Since brokering pornographic material is explicitly prohibited, only such practices could fall under the definition of pimping.
In support of their claim, the three feminist associations reiterate the criticized status of the pornographic industry, which oscillates between adult audiovisual production and filmed sexual exploitation.
As a reminder, Articles 225-5 et seq. of the French Penal Code punish the offense of pimping and its related forms, such as pimping by inciting prostitution or by profiting from the prostitution of another, by analogy. The offense encompasses three situations: aiding or abetting the prostitution of another, profiting from the prostitution of another, and recruiting or controlling a person with the aim of making them perform acts of prostitution.
Aggravated penalties, particularly for organized crime or acts of barbarity, can result in sentences of up to twenty years’ imprisonment, or even life imprisonment, and fines of 3 to 4 million euros.
Producers of pornographic films are thus allegedly organizing prostitution rings by facilitating connections between individuals, the sexual acts performed, and the exchange of money. The profits generated from the distribution of films initiated by the production company would justify the classification of pimping, similar to existing categories such as hotel-based pimping.
This is the position taken by Californian courts, which fined the “Girls Do Porn” platform $13 million for fraud, coercion, and intimidation. The courts also found the contracts signed with the participants to be invalid and fraudulent.
All complicit, all responsible. Classifying pornography in its entirety as a form of prostitution, and by extension aggravated pimping, could have far-reaching consequences, potentially leading to a cascade of liability for a considerable number of people as perpetrators, accomplices, or receivers of stolen goods, provided they can be proven to be aware of their direct or indirect participation in the offense.
In fact, all those involved in the organization, distribution, advertising or receiving any form of remuneration could fall under the criminal law: producers and directors, assistants, technicians, makeup artists, cameramen present on the set, but also broadcasters, cable or internet television channels, certain press bodies, the Internet and many advertisers and publicists who make a percentage of their turnover with the X industry.
Digital companies that facilitate, assist, or profit from cybercrime, even indirectly and knowingly, would also be subject to the same penalties: Google, Apple, Amazon.
Contact us for any questions regarding cybercrimes and the protection of your rights.
