Decision of April 6, 2023 putting Techpump Solutions S.L. on notice with regard to the "Heureporno" online public communication service.

The Chairman of the French regulatory authority for audiovisual and digital communication,

Having regard to article 227-24 of the French penal code;

Having regard to law no. 2020-936 of July 30, 2020 aimed at protecting victims of domestic violence, in particular article 23 ;

Having regard to decree no. 2021-1306 of October 7, 2021 relating to the implementation of measures to protect persons under 18 from access to sites showing pornographic content, in particular articles 1, 2 and 3 ;

Having regard to the report drawn up on April 3, 2023 by an agent of the French regulatory authority for audiovisual and digital communication under the authority of its chairman, concerning the online public communication service "Heureporno" accessible from the Internet address https://www.heureporno.com ;

Considering the following:

On the legal manager

1. On the one hand, under the provisions of article 227-24 of the French penal code, "the fact of either producing, transporting or diffusing by any means whatsoever and whatever the medium, a pornographic message (...) (...), or of trading in such a message, is punishable by three years' imprisonment and a penalty notice of 75,000 euros when this message is likely to be seen or perceived by a person under 18 (...). The infringements provided for in this article are constituted even if access by a person under 18 to the messages referred to in the first paragraph is the result of a simple declaration by that person indicating that he or she is at least eighteen years of age".

2. On the other hand, by virtue of the provisions of article 23 of the law of July 30, 2020, "when it finds that a person whose activity is to publish an online public communication service allows minors to have access to pornographic content in breach of article 227-24 of the penal code, the president of the French regulatory authority for audiovisual and digital communication sends this person, by any means likely to establish the date NOR : RCAP2309739S of receipt, a formal notice enjoining him/her to take all necessary measures to prevent access by persons under 18 to the offending content. The person receiving the injunction has fifteen days in which to present his or her observations. On expiry of this period, in the event of failure to comply with the injunction provided for in the first paragraph of this article, and if the content remains accessible to minors, the Chairman of the French regulatory authority for audiovisual and digital communication may refer the matter to the President of the Paris judicial court for the purpose of ordering, under the accelerated procedure on the merits, that the persons mentioned in article 6, paragraph 1 of law no. 2004-575 of June 21, 2004 on confidence in the digital economy terminate access to this service (...)".

The facts of the case

3. It is clear from the report drawn up on April 3, 2023 referred to above that access to pornographic content offered on the online public communication service called "Heureporno", published by Techpump Solutions S.L. and accessible from the Internet address https://www.heureporno.com, results from a simple declaration of majority on which it is sufficient to click.

4. This measure does not guarantee that the pornographic content available on the "Heureporno" website can only be accessed by people of legal age, as required by the last paragraph of article 227-24 of the French Penal Code.

5. It follows from the above that pornographic content is made accessible to persons under 18 on the "Heureporno" online public communication service, in breach of article 227-24 of the French penal code. Consequently, the present formal notice should be issued.

Decides :

Art. 1. - Techpump Solutions S.L. is hereby given formal notice, with regard to the online public communication service "Heureporno", to take, within fifteen days of notification of the present decision, any measure likely to comply with the provisions of article 227-24 of the French penal code. It has the same period in which to present its observations.

Art. 2 - The present decision will be notified to Techpump Solutions S.L. and published in the Journal officiel de la République française.

Done in Paris,

April 6, 2023

The Chairman,

R.-O. MAISTRE