German ISP Update
In another recent adult website-related ruling, the court ruled that Arcor is not obligated to block YouPorn.com, either.
According to German attorney Daniel Koetz, the only European member of the 1st Amendment Lawyers Association (FALA) and a bar-certified specialist in copyright and media law, websites that offer content "harmful to minors" must conform to age verification protocols established under the German Telemedia Act, or risk being blocked by German ISPs by order of the court.
In its recent rulings with respect to Arcor, however, the court decided the cases based on business competition law, and not the Telemedia Act, Koetz said, offering a hypothetical example to explain the court's reasoning.
"The likes of YouPorn are still illegal under German law," Koetz told XBIZ. "If 'Company A' sues YouPorn for not using an age verification system, then Company A will win. However, if Arcor provides service to YouPorn, this is not an act of unfair competition — so Company A cannot force an ISP to block YouPorn."
If Company A in Koetz's hypothetical situation were an adult website, then Company A could take legal action against another adult operation, 'Company B,' if Company B was not complying with Germany's age verification protocol.
"If it's Company A against Company B [then] unfair competition may give Company A a cease and desist claim," Koetz said. "But not Company A against an ISP, because there's no competition [between the ISP and Company A]."
Koetz added that while in hypothetical example, Company A could sue YouPorn in a German court and win, "YouPorn wouldn't care much," because YouPorn is not based in Germany and any judgment entered by a German court would be difficult to collect or enforce against YouPorn.
"That's why nobody [in Germany] sues non-German companies," Koetz said. "It's ridiculous."
Koetz emphasized that the court's ruling was "in no way a pro-porn verdict," but merely a recognition by the court that Arcor was simply providing a service, and should not be legally liable for the lack of age verification by sites accessed through its service.
"The court only finally understood that using an access provider is nothing [different] than using a telephone line," Koetz said.
Huch Medien filed its petition with the Frankfurt court in December, noting that Google's image search displayed pornographic images, including "clearly prohibited animal pornography," to users of all ages.
Huch Medien reported the issue to Arcor directly on Nov. 20, according to reports, and waited to see if the ISP would take measures to block Google. After receiving no response from Arcor to the original report or to a subsequent formal cease and desist letter sent by the company's attorneys, Huch Medien took the matter to court.
It was clear at the time, however, that Huch Medien's goal was not so much to get Google blocked as it was a ploy to get the court to examine the Telemedia Act, and to clarify the scope of the liability exemptions offered to ISPs under the German Telemedia Act.
"The court needs to tell us whether the German way is the only way," said Huch Medien Executive Director Tobias Huch at the time. At that point, the order requiring Arcor to block YouPorn was still standing; Huch argued that if the courts are going to require ISPs to block sites like YouPorn, then the country theoretically should block all websites that violate relevant German and/or European Union law.
If Germany is going to maintain such a legal posture and engage in blocking sites in widespread fashion, then "we should not complain when China blocks a large number of websites," Huch said.
While the court's recent rulings appear to have taken Google off the menu of sites that might be blocked under the Telemedia Act, the law remains in effect, and will still be applied on a case-by-case basis.
Koetz explained to XBIZ that the Telemedia Act requires "all sites bearing content presumably harmful to minors such as pornography to have an age-verification system."
"Such an age-verification system has to 'secure that minors cannot access the site,'" Koetz said. "Such is the written law."
Koetz said that under the law, German authorities and courts only deem an age-verification system to be secure if the system forces end users to have personal contact with a third party who verifies their age.
"[It is] just like when entering an adult bookstore; the owner sees the customer, and the customer is over 18 years old," Koetz said. "So, we have a 'PostIdent-Verfahren' [translates as "Postident-Procedure"] which is an identification-process via your post office. You go there with a form, the clerk sees the form and your passport, acknowledges your being over 18 and there you go."
One of the problems with that system, Koetz said, is "who wants to go through all that hassle to enter a porn site, and who wants postal clerks to know you're a pervert watching porn?"
Koetz said Huch Medien's request was filed in order to demonstrate "the perversion of all this."
"Germany does not have a porn problem — it has a freedom-of-information-via-the-Internet problem," Koetz said.
Could It Happen Here?
Asked what would prevent the U.S. Congress from passing a similar law, Reed Lee told XBIZ that "the short answer is the 1st Amendment."
"The 1st Amendment is very sensitive to 'burden,'" Lee said. "Not only burden imposed on the speaker, but on the listener and the audience as well."
A law that required Americans to register for an ID number or something similar identifying them as adults, and a corresponding requirement to implement a system that makes use of such IDs, would impose burdens on both the audience and the speaker, Lee said.
Drawing an offline analogy, Lee said that if a state government were to impose a tax on adult products simply for the purpose of making the products more expensive to discourage purchasers, such a law would be struck down due to the burden it imposes on the audience.
Any American law similar German Telemedia Act would raise serious privacy concerns as well, Lee said.
"A bill that requires you to register yourself with the post office or any other government institution in order to join the audience is tantamount to a declaration to the government that pornography is among your reading material," Lee said. "That poses the most serious constitutional obstacle."
Privacy concerns aside, Lee said that it should not be adult producers or their adult 'audience members' that bear the burden of keeping children from accessing age-restricted materials.
"It is perfectly appropriate to put a mild burden on adults [to keep kids from viewing adult content], but the initial burden on someone who wants to shut out part of the world should be on that person," Lee said.
Lee asserted that the only legal measure that could substantially prevent kids accessing 'harmful to minors' content would be an outright ban on such content — and as Justice Felix Frankfurter wrote roughly 50 years ago in Butler vs. Michigan, to impose such a ban would be "to burn down the house to roast the pig."
This story updates an article first published in the March, 2008 issue of XBIZ World Magazine.