Decision of July 11, 2022 giving formal notice to ARES concerning the online public communication service "Jacquie et Michel TV".
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 terms and conditions for implementing measures to protect persons under 18 from accessing sites showing pornographic content, in particular articles 1, 2 and 3 ;
Having regard to the bailiff's reports drawn up on March 3 and April 6, 2022;
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 manufacturing, 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 the present article are constituted even if access by a person under 18 to the messages mentioned in the first paragraph is the result of a simple declaration by that person indicating that he or she is at least eighteen years old".
2. On the other hand, under the provisions of article 23 of the July 30, 2020 law, "when it finds that a person whose activity is to publish an online public communication service is enabling persons under 18 to access pornographic content in breach of article 227-24 of the French penal code, the President of the French regulatory authority for audiovisual and digital communication sends this person, by any means capable of establishing the date of receipt, a formal notice enjoining him/her to take any measures likely to prevent access by minors 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 Court of First Instance 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 bailiff's reports drawn up on March 3 and April 6, 2022 that access to pornographic content offered on the online public communication service called "Jacquie et Michel TV", published by the company ARES and accessible from the Internet address https://www.jacquieetmicheltv.net, is conditional on connection to an account called "My18Pass", the creation of which involves a stage of verification of the user's majority, in particular by entering information relating to a bank card of which the user is the holder.
4. These same findings show that the technical scheme put in place by ARES to ensure that users wishing to access the "Jacquie et Michel TV" service are over 18 is not reliable, insofar as the use of bank card details for persons under 18 enables the creation of a "My18Pass" account and access to the pornographic content made available on the "Jacquie et Michel TV" service.
5. It follows from the foregoing that pornographic content has been made accessible to persons under 18 on the "Jacquie et Michel TV" 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. - ARESis hereby ordered, with regard to the online public communication service "Jacquie et Michel TV", to take all necessary measures to comply with the provisions of article 227-24 of the French penal code within fifteen days of notification of this decision. It has the same period in which to present its observations.
Art. 2 - The present decision will be notified to ARES and published in the Journal officiel de la République française.
Signed in Paris,
July 11, 2022
The Chairman,
R.-O. MAISTRE
Decision of July 11, 2022 giving formal notice to ARES concerning the online public communication service "Jacquie et Michel TV".
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