While the bill aimed at securing and regulating the digital space has just passed the joint committee, the text sees its ambitions revised downwards. This is particularly the case with the blocking of X sites for minors.
From access to pornographic sites to banning social networks, the bill aimed at securing and regulating the digital space (SREN) is as ambitious as it is controversial. Voted by the Senate in July 2023 and following on from the Avia law of 2020, it was adopted at first reading by the National Assembly last October. The text then passed to the Joint Joint Committee, where the deputies and senators managed to agree on a common version on Tuesday March 26, 2024, as reported the press release. It addresses in particular the establishment of an anti-scam filter, the strengthening of sanctions against people convicted of cyberharassment and the strengthening of the sanction of platforms in the event of non-removal of child pornography content online (see our article). One point in particular has been heating up minds for several months: the blocking of pornographic sites for minors.
Indeed, the five most popular pornographic sites in France – namely Pornhub, Tukif, Xhamster, Xnxx and Xvideos – clearly indicate on their home page that they are pornographic and that access is prohibited for minors: “This website, reserved for an adult and informed public, complies with all French regulations in force. It contains X-rated texts, photos and videos which may offend the sensibilities of certain people.”
But that’s all. It is very easy for a child, regardless of age, to click on the “Enter” button by certifying on their honor “have become aware of the pornographic nature of this site and be of legal age according to the laws in force in my state or my country”. In short, a purely formal warning which in no way prevents you from viewing pornographic content and, what is more, contravenes French legislation (see our article). Also, the new text is supposed to force X sites to actually verify the age of their visitors. But the passage to the Joint Joint Commission has considerably weakened it…
Blocking of X sites: a text with a greatly reduced reach
As a reminder, the bill initially aimed to authorize Arcom to block and dereference, without a judicial decision, any pornographic site that does not carry out an age verification for any connection of a French Internet user. It was a question of strengthening this control, already obligatory in the law, but which is not in reality applied. If after the expiration of a period of fifteen days following a formal notice from Arcom, the site was still not in compliance, it faced a fine of 250,000 euros and one year in prison, or even more. in the event of habitual breaches. Access providers and hosting providers would then have had forty-eight hours to prevent access to the offending addresses.
The problem is that the new version of the text considerably limits the scope of the measure. If the bill clearly provides that Arcom must “develop a general framework setting out the technical requirements to which age verification systems on pornographic sites must comply, under penalty of heavy fines”the measure now only concerns platforms established in France – such as Jacquie and Michel – or outside the European Union.
Concretely, porn giants like Pornhub, Xvideos, Xhamster – the three most visited adult sites in France – or even YouPorn will therefore be spared. A change which is due to the European Commission, which has repeatedly reminded the Government that, by virtue of the e-commerce directive of 2000, providers of these online services are subject in the EU to the law of the Member State in which they are established, and not to other national rules, so that they do not risk facing as many regulations as there are member countries. If the French authorities wish to take action, they will have to go through local authorities for each pornographic site concerned, during a long and complex procedure which may never be successful.
Blocking porn sites: a difficult measure to implement
The senators amended the text to require pornographic sites to systematically display a warning message before the dissemination of any content containing the simulation of rape or sexual assault, and to allow Arcom to block the download of applications that do not respect legal control of age limits. For their part, the deputies made some modifications so that the Authority publishes the technical framework on age control for pornographic sites within two months of the publication of the law and that the sites comply with it in the three months.
It remains to be seen how to verify the age of Internet users visiting pornographic sites. When the text was adopted by the National Assembly, article 1er of the bill specified that the Authority would be responsible for imagining an effective technical solution that would protect personal data and for applying it to the platforms. A provision which faces a technical problem, because such a device is very difficult to put in place. The subject is all the more sensitive as the CNIL has ruled out any solution consisting of transmitting an identity document to X sites, in order to protect the privacy of Internet users. The double anonymity system seemed to be the best solution, so much so that the Government announced the first tests during the spring of 2023. A measure which was far from having convinced the child protection associations and which we no longer have. news today…
The text will now be able to be definitively adopted in both chambers, from April 2 in the Senate and April 10 in the Assembly, according to the site Digital solutions and cybersecurity. It will then have to go before the Constitutional Council, then before the European Commission, which could decide to censor the entire text to avoid any duplication with future European regulation on the subject.