The ban on minors from pornographic sites will only become effective if reliable technical devices for access control and age certification are developed.
ARCOM, the administrative authority for the regulation of communications, regularly sends formal notices, reminding porn sites of their obligations. A simple request for a declaration of age is insufficient with regard to article 227-24 of the penal code according to which
: "the fact either of manufacturing, transporting, distributing by any means whatsoever and whatever the medium
message (…) pornographic (…), or to trade in such a message, is punished by three years' imprisonment
and a fine of €75,000 when this message is likely to be seen or perceived by a minor (…). The infractions
provided for in this article are constituted, including if the access of a minor to the messages mentioned in the first
paragraph results from a simple declaration by the latter indicating that he is at least eighteen years old”.
Heureporno, xHamsterLive, Folieporno, Pornhub, Tukif, Xhamster, Xnxx, Xvideos, RedTube, Youporn, Jacquie and Michel, for the most important (4 million X sites in France according to Pornhub).
In the absence of compliance, ARCOM may seize the president of the judicial court according to the accelerated procedure on the merits for the purpose of blocking and delisting the site, on assignment of the sites, Internet service providers (ISP) (Orange, Orange Caraïbe , Free, Free Mobile, SFR and SFR Fibre, Bouygues Télécom, Colt Technologies Services, Outre-Mer Télécom) and search engines (Google, Yahoo, Bing).
Case law:
Civil. 1st, QPC, 5 Jan. 2023, n° 22-40.017
CE 29 Nov. 2022, Sté MG Freesites Ltd, n° 463163
ARCOM, Decisions Nos. 2023-P-04, 2023-P-05 and 2023-P-06 of April 6, 2023, JO April 12
The government could submit a draft law allowing blocking and delisting by decision of ARCOM, with heavy fines, without going through a judge, with possible suspensive appeal a posteriori, within five days, before the administrative judge.
A vigorous and finally effective process which could be extended to other content, restricting freedom of expression litigation to more targeted questions, relieving the courts of litigation relating to content not really linked to the "right to information ".
The CNIL had issued the following recommendations with regard to the GDPR (Union regulation relating to the protection of personal data):
- That the control is carried out by a third party, and not by the visited site itself
- That this third party can certify of the required age, but without having knowledge of the sites visited
- That the site visited receives proof of age, but without knowing the identity
Porn sites, which complained about the lack of technical devices allowing them to apply the law.
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