PARIS — Legal analysts published this week a detailed explanation of MindGeek’s ongoing constitutional challenge against a French media regulatory agency’s attempt to completely block adult sites in the country over age-verification compliance.
As XBIZ reported, the current case moving through French court originated with a War on Porn-driven attempt by French non-profit groups claiming to be acting on behalf of “the children.”
Julia Apostle and Meg Hennessey of San Francisco-based international law firm Orrick, Herrington & Sutcliffe LLP published their analysis on legal resource site JD Supra.
Apostle and Hennessey noted that during a Sept. 6 hearing, “lawyers acting for MG Freesites Ltd. (operators of the Pornhub website), raised a constitutional challenge against a recent law that permits France’s online content regulator (ARCOM) to seek a blocking order targeting websites that fail to prevent minors from accessing online pornography.”
Two days later, the Paris Judicial Tribunal “issued a decision requiring all parties to attend a mediation-information session in the hopes of finding a solution.”
The decision about “whether to refer the constitutional challenge to the higher court” is expected on Oct. 4, when the Tribunal must decide whether MindGeek’s challenge “meets the criteria to be sent to the French Cour de Cassation for full arguments.”
ARCOM Failed to Provide Guidance on Age Verification
According to Apostle and Hennessey, the constitutional challenge raised by MindGeek depends on two arguments: 1) “Given the absence of effective technical solutions it is not possible for the company to comply with the law and thus the law is unconstitutional,” and 2) “The law violates freedom of expression due to its lack of proportionality, with a particular emphasis on its ultimate ineffectiveness (due to the widespread use of VPNs) and an absence of necessity in light of a recently adopted law that will require terminals devices to default to parental controls.”
The legal analysts point out that media regulator ARCOM “has not released any guidance regarding age verification tools that it would consider sufficient to comply with the French Criminal Code provision.”
Moreover, MindGeek lawyers argue that ARCOM “also failed to respond to repeated requests to engage in discussions regarding possible solutions,” confusingly answering one of the queries by claiming that “there may be as many viable solutions as porn sites available in France, a figure estimated to be approximately 4 million, according to MG Freesites.”
To compound the confusion, French data protection regulator CNIL recently stated in a report on age verification that “there are currently no available solutions that are both effective and privacy preserving.”
ARCOM’s lawyers maintain that the constitutional challenge presented by MindGeek’s lawyer does not meet the criteria to be sent to the French Cour de Cassation for full arguments.
For more of XBIZ’s ongoing coverage of the attempt to block all adult sites in France, click here.