LUXEMBOURG — An advocate general of the European Union’s Court of Justice on Thursday advised the court to rule that France may require pornographic websites based in other EU states to implement age verification in accordance with French law.
Advocate General Maciej Szpunar delivered the nonbinding legal opinion in a case involving WebGroup Czech Republic, which operates XVideos.com, and NKL Associates, which operates XNXX.com.
The two companies had appealed to France’s Council of State, the nation’s highest administrative court, contending that French media regulator Arcom does not have the power to compel sites based outside of France to follow French AV regulations. The companies argued that such action by Arcom would violate the “country of origin” principle in the EU’s Directive on Electronic Commerce, which states that online platforms “should be supervised at the source of the activity” and “should in principle be subject to the law of the Member State in which the service provider is established.”
The French Council of State asked the EU Court of Justice to advise on the matter, and the court held a hearing in March.
In an opinion delivered Thursday, Szpunar stated that the obligation of websites to prevent minors from accessing adult content does fall within the Directive’s “coordinated field,” meaning that the rule can apply to sites from other EU member states as well.
That opinion is not binding on the Court of Justice, which must still render judgment. It will then be up to France’s Council of State to “dispose of the case in accordance with the Court’s decision,” Thursday’s press release notes.
As XBIZ reported last month, XVideos and XNXX are among several websites that Arcom has called out for failing to implement age verification as required under France’s Security and Regulation of the Digital Space (SREN) law. Should the sites fail to comply, Arcom plans to initiate delisting and blocking proceedings against them.
There has been controversy over whether Arcom has jurisdiction to regulate companies based in other EU member states and what procedures would have to be followed. Arcom asked media regulators in the Czech Republic to aid in enforcing its AV rules, but those agencies declined on the grounds that they lack sufficient legal means to enforce the French law in their countries.
As XBIZ reported in May, the European Commission is investigating XVideos and XNXX for suspected breaches of the Digital Services Act (DSA), after preliminarily finding that the platforms do not comply with a DSA requirement to put in place age verification tools to safeguard minors from adult content.
Should the EU Court of Justice follow Szpunar’s recommendation, France is almost certain to give internet service providers the go-ahead to block adult sites if requested to do so by Arcom. Such a ruling would also set precedent for other EU member states on matters of jurisdiction involving age verification laws.
