What's Good for the Goose is Good For…Google

Quentin Boyer
Under the German Telemedia Act, websites that offer content deemed “harmful to minors” must conform to age verification protocols established by the German government, or risk being blocked by German ISPs by order of the court.

In December, a German adult website operator filed for expedited proceedings in the district court in Frankfurt to force the German ISP Arcor to block Google.de and Google.com in order to prevent the display of adult images without age verification, as required under the Telemedia Act.

The request was filed by Huch Medien GmbH, the company that owns and operates AmateurStar.de, according to the news site Heise.de.

In its filing, Huch Medien reportedly said it would not simply sit back and watch as Google’s image search displayed pornographic images to users of all ages, including “clearly prohibited animal pornography.”

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.

Huch Medien Executive Director Tobias Huch said that he’s merely trying to get the German legal system 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,” Huch said.

Huch asserted that since Germany blocks sites like YouPorn.com — as the court ordered Arcor to do in October — 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.

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, the German law requiring age verification applies to all websites that can be accessed from Germany.

Koetz told 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’ which is an identification process via your post office. You go there with a form, 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 that as a result of the law, traffic to German porn sites is low because “everybody goes to other countries’ sites.”

Those foreign sites, however, are subject to being blocked by German ISPs by order of the courts, Koetz said — as Huch has requested that the Frankfurt court to Arcor to do with Google.

Koetz said that Huch’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.

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.”