Decision of December 13, 2021 giving formal notice to MG Freesites Ltd concerning the "Pornhub" online public communication service.

The Chairman of the Conseil supérieur de l'audiovisuel,

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 on the implementation of measures to protect minors against access to sites broadcasting pornographic content, in particular articles 1, 2 and 3 ;

In view of the bailiff's report drawn up on February 12, 2021, relating to the "Pornhub" online public communication service accessible from the Internet address https://fr.pornhub.com;

Having regard to the e-mail dated March 15, 2021 in which MG Freesites Ltd presented its observations in response to the request made by the Director General of the Conseil supérieur de l'audiovisuel by letter dated March 1, 2021;

Having regard to the bailiff's report drawn up on October 5, 2021, relating to the "Pornhub" online public communication service accessible from the Internet address https://fr.pornhub.com;

Considering the following:

Legal framework

1. Firstly, under the terms of article 227-24 of the French Penal Code, "the fact of either producing, transporting or distributing 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 fine of 75,000 euros when the message is likely to be seen or perceived by a minor (...). The offences provided for in the present article are constituted even if access by a minor to the messages mentioned in the first paragraph results from a simple declaration by the minor indicating that he or she is at least eighteen years of age".

2. On the other hand, under 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 access pornographic content in violation of article 227-24 of the penal code, the president of the Conseil supérieur de l'audiovisuel sends this person, by any means capable of establishing the date of receipt, a formal notice enjoining it to take any measure likely to prevent minors from accessing the incriminated content. The person to whom the injunction is addressed has fifteen days in which to submit 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 President of the Conseil supérieur de l'audiovisuel may refer the matter to the President of the Paris Tribunal judiciaire 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 put an end to access to this service (...)".

The facts of the case

3. It is clear from the bailiff's reports drawn up on February 12 and October 5 2021 that access to pornographic content offered on the "Pornhub" online public communication service, published by MG Freesites Ltd and accessible from the Internet address https://fr.pornhub.com, is the result of a simple majority declaration that only needs to be clicked on.

4. This measure does not guarantee that only an adult public is likely to access the pornographic content available on the "Pornhub" website, as stipulated in the last paragraph of article 227-24 of the French penal code.

5. In a letter dated March 1, 2021, the Director General of the Conseil Supérieur de l'Audiovisuel asked MG Freesites Ltd to submit any observations it considered useful for the investigation of the case by March 16, 2021 at the latest. By e-mail dated March 15, 2021, MG Freesites Ltd submitted its observations, which do not call into question the reality of the breach of the aforementioned provisions of the French penal code.

6. It follows from the foregoing that pornographic content has been made accessible to minors on the "Pornhub" online public communication service, in violation of article 227-24 of the French penal code. Consequently, the present formal notice should be issued.

Decides :

Art. 1. - MG Freesites Ltd is hereby given formal notice, with regard to the online public communication service "Pornhub", 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 MG Freesites Ltd and published in the Journal officiel de la République française.

Paris, December 13, 2021

The Chairman,

R.-O. MAISTRE