French court blocks websites in ‘pivotal’ effort to safeguard minors online

The ruling was the result of an action brought by La Voix de l'enfant and E-enfance, two associations dedicated to the rights and protection of children in the digital space.

The ruling follows years of litigation with the ban ordered due to the failure of various adult content sites to implement robust age verification systems. The ruling mandates that these sites must be inaccessible in France until they comply with stringent age verification requirements.

Annabelle Richard, technology law expert at Pinsent Masons said: “It is big victory to finally have a court decision recognising that the age assurance measures implemented by these websites were not compliant with applicable regulations.”

The dispute started in 2021 when the two associations went to court to request that internet service providers be ordered to block nine pornographic websites in France. These sites did not have in place a proper age verification system and were relying merely on users’ declarations.

The French criminal code establishes the offence of the distribution or sale of pornographic messages, which is punishable if a child is likely to see or perceive this content. This offence is also committed if a minor’s access to pornographic content is the result of a simple declaration by the minor stating that he or she is at least 18 years old.

After a first round at the Paris Court of Appeal, which rejected the associations’ claims, they went to the French Supreme Court. The Supreme Court ruled that the associations were admissible and sent the case back to the Court of Appeal.

The Court of Appeal found that websites had not taken sufficient steps to verify the age of their users. The court emphasised that merely displaying a disclaimer button, which users can click to assert they are over 18, does not constitute a reliable age verification method. The ruling highlighted the need for more stringent measures, such as requiring users to provide proof of age through identification or other secure methods.

However, only websites established in France or in a non-EU member state can be blocked under the French criminal code.

This is due to an incompatibility between French provisions and EU law. The 2002 E-commerce directive does not allow the French legislator to impose a measure falling within the European coordinated field for companies established in another member state. A national legislator can only impose measures on companies established either in its territory, or in a non-EU member state. Blocking such sites would therefore be contrary to EU principles, with some named sites based in states such as Czech Republic and Cyprus.

The question of compatibility had already been raised in another case after an action for annulment of the decree implementing the measures to protect minors from access to pornographic websites. The French judge referred the question of the compatibility of the French provisions on age verification with the E-commerce directive to the Court of Justice of the EU (CJEU) for a preliminary ruling.

The publishers have therefore obtained a stay of proceedings pending the answer to the questions referred to the CJEU because of the link with the case brought by the associations.

“It is frustrating that such significant stakeholders, because they are located in the EU, are escaping any sanction for now. Let’s hope this is only the first step in the right direction and a sign that member states will be more vigilant regarding age assurance obligations and the mechanisms implemented by the porn industry,” said Richard.