Decision of April 7, 2022 giving formal notice to MG Freesites Ltd concerning the "YouPorn" 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 terms and conditions for implementing measures to protect persons under 18 from accessing sites showing pornographic content, in particular articles 1, 2 and 3 ;

In view of the bailiff's report drawn up on February 10, 2022, relating to the "YouPorn" online public communication service accessible from the Internet address https://www.youporn.com;

Having regard to the e-mail dated March 23, 2022 by which MG Freesites Ltd presented its observations in response to the demand made by the French regulatory authority for audiovisual and digital communication by e-mail dated March 8, 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 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, in accordance with the provisions of article 23 of the law of July 30, 2020, "when the president of the French Superior Audiovisual Council finds that a person whose activity is to publish an online public communication service is enabling minors to access pornographic content in breach of article 227-24 of the French Penal Code, the president of the French Superior Audiovisual Council shall send this person, by any means capable of establishing the date of receipt, a formal notice enjoining him or her to take all necessary measures to prevent minors from accessing the offending content. The person to whom the injunction is addressed 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 President of the French Superior Audiovisual Council 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 report drawn up on February 10, 2022 that access to pornographic content offered on the online public communication service "YouPorn", published by MG Freesites Ltd and accessible from the Internet address https://www.youporn.com, is the result of a simple majority declaration that can be clicked on.

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

5. By e-mail dated March 8, 2022, the French regulatory authority for audiovisual and digital communication demanded that MG Freesites Ltd submit any observations it considered useful for the investigation of the case, by March 23, 2022 at the latest. By e-mail dated March 23, 2022, 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 persons under 18 on the "YouPorn" 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. -MG Freesites Ltd is hereby given formal notice, with regard to the online public communication service "YouPorn", 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.

Done in Paris,

April 7, 2022

For the French regulatory authority for audiovisual and digital communication :

Le président,

R.-O. MAISTRE