Presentation
Current developments in digital law are dominated by the development and implementation of regulatory mechanisms for online platforms. In addition to the European Digital Markets Act and Digital Services Act, which will soon be implemented, national legislators and several regulatory authorities have launched numerous initiatives related to fake news, the fight against online hate speech, counterfeiting and illegal downloading, and, more recently, the fight against pornographic content platforms.
In this context, a legal battle is underway regarding the complex issue of the measures implemented by pornographic websites to verify the age of their users.
Restricting Access to Pornographic Content: Two Years of Legal Proceedings
In November 2020, three organizations denounced the illegality of these platforms under French law, particularly regarding access conditions for minors: the Observatory for Parenthood and Digital Education (OPEN), supported by the French Council of Associations for Children’s Rights (COFRADE, which includes OPEN among its members), and the National Union of Family Associations (UNAF).
On December 13, 2021, the president of the French Broadcasting Authority (CSA) formally ordered the five websites “to take, within fifteen days, all necessary measures to prevent minors from accessing the offending content, in accordance with the provisions of the Penal Code.”
On March 8, 2022, ARCOM (the French Regulatory Authority for Audiovisual and Digital Communication) filed a lawsuit against major internet service providers, including Orange, Free, Bouygues, and SFR, seeking to block access in France to the largest pornographic websites: Pornhub, Xnxx, Xvideos, Tukif, and XHamster.
As a reminder, ARCOM is an independent administrative authority created in 2022 through the merger of the CSA (French Broadcasting Authority) and the High Authority for the Dissemination of Works and the Protection of Rights on the Internet (Hadopi).
These platforms are accused of failing to implement a system to effectively block minors’ access to pornographic content, in violation of Article 23 of the law of July 30, 2020. The simple age verification currently in place is deemed insufficient to comply with the legal provisions, which are subject to penalties under Article 227-24 of the Penal Code.
Following an initial hearing on September 6, 2022, the judge ordered the parties on September 8 to meet with a mediator.
See the court decision of the Paris Judicial Court, case number RG22/55687, dated September 8, 2022.
The next step is for the court to rule on the priority preliminary ruling on constitutionality on October 4, 2022, concerning the constitutionality of the legislation justifying the blocking of such websites.
Age Verification: The Challenge for Pornographic Content Hosting Platforms
Bound by a “freedom of means” to ensure their compliance with the law, it is up to the platforms to devise and implement technical and digital solutions, which are left to the discretion of the relevant authorities: simply disclosing historical age is no longer sufficient since the law of July 30, 2020.
The credit card solution considered by some players in the sector, notably Jacquie et Michel, was also rejected by Arcom. In fact, this method appears circumventable, inaccessible to everyone, and multiplies the risks of cyber phishing, in the same way as identity document verification.
Equally original solutions such as facial analysis, verification at a tobacconist or via the FranceConnect platform, and age verification by inference do not appear more reliable or to guarantee the protection of individual freedoms, including respect for privacy.
Access to Pornographic Websites: CNIL Analysis
When questioned on the issue, the French Data Protection Authority (CNIL) noted that no satisfactory age verification solution has yet been identified. The CNIL indirectly recommends the development of co-regulation involving informing and raising awareness among children, parents, legal guardians, and caregivers about best practices, the use of parental control software, and more generally, solutions based on trusted third parties.
The CNIL had previously proposed several avenues for consideration, including “integrating a double anonymity mechanism that would prevent, firstly, the trusted third party from identifying the website or application that initiated a verification request and, secondly, prevent the transmission of identifying user data to the website or application offering pornographic content.” »
The Necessary and Imposed Reform of the Pornography Industry
The pornography industry has been battered in recent years by a series of scandals and legal cases involving many of its key players.
During his election campaign, President Emmanuel Macron announced his intention to regulate pornographic websites, “accused of corrupting youth even in schoolyards,” in a societal context marked by the Weinstein revelations and the #MeToo movement. In this context, many stakeholders are committing to implementing an ethical charter for the adult entertainment industry to combat sexual abuse and violence in France.
In June, representatives from Arcom, Google, the French Telecoms Federation (FFT), the CNIL (French Data Protection Authority), and the Digital Regulation Expertise Center (PEReN) were questioned by the Senate’s fact-finding mission on the excesses of the pornography industry to address the difficulties in implementing the 2020 law.
Numerous delegations of female senators also worked on the working conditions of actors and actresses in the pornographic industry. With expert support, the link between prostitution and pornography appears to be established, while acknowledging a certain legal ambiguity on the subject.
Court of Cassation: Camgirls and filmed content excluded from the definition of prostitution
In this context, a recent decision by the Criminal Chamber of the Court of Cassation, dated May 18, 2022 (No. 21-82.283), resolved the complex issue of classifying camgirls and camboys as engaging in prostitution.
According to the Court of Cassation, there can be no offense of pimping without prostitution, and there can be no prostitution without paid physical contact with the client to satisfy their sexual needs. It follows that digital platforms that organize camming (or sexcam) cannot be prosecuted under Articles 225-5 et seq. of the Penal Code, which criminalize pimping.
Summary: “In the absence of a legal definition of prostitution, the characterization of which conditions the incrimination of pimping, and in the presence of recent texts which show that the legislator did not intend to extend the jurisprudential definition of this notion, established by the Court of Cassation in 1996, and according to which this activity consists of engaging, in return for remuneration, in physical contacts of any kind whatsoever, in order to satisfy the sexual needs of others, it is not for the judge to modify his assessment in a way which would have the effect of broadening this definition beyond what the legislator has expressly provided for. The appeal that criticized an investigating chamber for refusing to extend the definition of prostitution to the activity of “camming,” which consists of offering, for payment, the distribution of sexually explicit images or videos, where the client can remotely give specific instructions regarding the nature of the behavior or sexual act to be performed, provided that this does not involve any physical contact between the person engaging in the activity and the person requesting it, must therefore be dismissed.
With this decision, which stems from a strict interpretation of criminal law, the Court of Cassation appears to be making a clear distinction between prostitution and pornography, to the detriment of better protection for potential and actual victims of pimping systems that generally incorporate the creation of digital content. Only the legislature seems capable today of transforming existing law in this area, as it has already done, notably against revenge porn.
Read our special report on legal cases involving producers and hosts of pornographic content:
PornHub & Xvideos: Criminal liability of pornographic platforms
Jacquie & Michel: Legal proceedings against a distributor of adult content
