Following a decision by the judge of the Paris administrative court, the Conseil d'État has rejected the application to suspend the obligation to verify the age of users imposed on certain pornographic content distribution services based in other European Union Member States, on the grounds of lack of urgency. The company applying for suspension failed to demonstrate that this measure would have a serious and immediate impact on its economic situation. Furthermore, the system imposed does not constitute a ban on the distribution of pornographic content to adults. Lastly, it is likely to contribute to the goal of protecting minors, as intended by the law of 21 May 2024.
To protect minors from exposure to pornographic content, the law of 21 May 2024, aimed at improving security for and regulating the digital domain, required certain services broadcasting this type of content to implement systems for verifying user age in compliance with a reference framework determined by the French regulatory authority for audiovisual and digital communication (Arcom). In an order dated 26 February 2025, the Minister for Culture and the Minister Delegate for Digital Affairs made this mandate applicable to certain service providers operating in other Member States of the European Union.
At the request of one of these service providers, Hammy Media Ltd (the 'xhamster' website), the inter-ministerial order was suspended by order of the urgent applications judge of the Paris Administrative Court. The court ruled that the two conditions laid down by law for such a suspension, namely urgency and the existence of serious doubts as to legality, had been met. The Conseil d'État, to which the Minister of Culture and the Minister Delegate for Digital Affairs referred their application, today overturned this order on the grounds of an error in legal reasoning and rejected the application for suspension on the grounds of lack of urgency.
The Conseil d'Etat found that the company has failed to provide any evidence to show that the application of the contested order would seriously affect its economic situation. It also noted that the order does not prohibit the distribution of pornographic content to adults, but only requires effective age verification systems to be implemented within the framework of the guarantees provided by law. There is, therefore, no infringement of freedom of expression or privacy.
Lastly, in weighing the various interests in play, the Conseil d'État took into consideration the public interest in protecting minors from exposure to pornographic content and deemed that the system was likely to contribute to achieving this goal.
Finding that there was no urgency, the Conseil d'État rejected the request to suspend the order of 26 February 2025 without having to rule on either its legality or the priority question of constitutionality raised against the law by the plaintiff.
Read the decision (in French)
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…about the conditions for suspending an administrative decision in summary proceedings
Pursuant to article L. 521-1 of the French Code of Administrative Justice, the urgent applications judge may order the suspension of a decision by an administrative authority, pending examination of the petition on its merits, after a thorough investigation. The judge may suspend a measure if two conditions are met: an emergency situation and serious doubt as to the legality of the decision. If the judge finds that one of these two conditions has not been met, they will dismiss the application without ruling on the other.
The urgency condition is deemed to be met when the administrative decision challenged causes sufficiently serious and immediate harm to a public interest, to the plaintiff's situation or to the interests it intends to defend. To reach their decision, the judge weighs up the various public and private interests concerned. A priority constitutionality issue may be raised in support of an application for interim relief, but the lack of urgency may dispense the court from ruling on this issue.
…about the legal framework of the dispute
The law of 21 May 2024, known as the "SREN" Act, aimed at securing and regulating the digital environment, overhauled the legal framework for protecting minors from access to online pornographic content. Publishers of online public communication services and video-sharing platform providers must now implement systems for verifying the age of users in accordance with a set of guidelines determined by Arcom after consultation with the CNIL (French data protection agency). Arcom may issue service providers concerned with formal notice to comply with these standards and, if they fail to do so, impose financial penalties.
The law also stipulates that, if it is found that the services in question allow minors to access pornographic content in breach of article 227-24 of the French Penal Code, Arcom may serve formal notice to the providers of such services to take all measures to prevent minors from accessing this content and, if they fail to do so, impose financial penalties on them. Arcom may also ask Internet service providers to prevent access to such services.
These rules apply automatically to service providers based in France or outside the European Union. The law also provides that they may be made applicable to service providers operating in other European Union Member States by joint order of the Ministers of Culture and Digital Affairs. This is what the order of 26 February 2025 did for a number of service providers.
...about other ongoing disputes on this topic
On 6 March 2024, the Conseil d'Etat referred a question to the Court of Justice of the European Union for a preliminary ruling regarding the possibility of applying this provision to companies based in other Member States of the European Union, in an appeal concerning the provisions of the "SREN" Act of 2024 relating to access by minors to pornographic websites (Act of 30 July 2020).
The Conseil d'Etat has also ruled on appeals on the merits against the technical guidelines on age verification adopted by Arcom as part of the implementation of the law of 21 May 2024.
Appeals on the merits against the Ministerial Order of 26 February 2025, which was challenged in the appeal heard today by the Conseil d’Etat, were also brought before the Paris Administrative Court.