EU court sets conditions for national age checks on pornographic websites
The EU’s highest court has ruled that a Member State may require pornographic websites based elsewhere in the EU to verify users’ ages, but only when the measure is necessary, proportionate, and follows EU procedures.
The Court of Justice of the European Union has clarified when national authorities may require online services established in another EU country to comply with domestic rules, including age-verification requirements for pornographic websites.
The ruling concerns joined cases involving WebGroup Czech Republic, NKL Associates, and Coyote System. France’s Council of State asked the EU court to clarify whether French measures were compatible with EU law.
EU online services generally benefit from the ‘country-of-origin principle’. This means that a service is mainly regulated by the EU country where the provider is legally established, rather than separately by every country where the service can be accessed.
The Court found that requiring a provider based in another Member State to introduce age checks restricts the free movement of online services. However, EU law allows such restrictions when they pursue recognised objectives and meet strict conditions.
Protecting children from pornographic content may qualify as a public policy objective. A Member State may therefore impose age verification requirements on a foreign-based provider when the measure is necessary, proportionate, and directed at a specific service that creates the identified risk.
Except in urgent cases, the country introducing the measure must first ask the provider’s country of establishment to take action. It must also notify that country and the European Commission before adopting the restriction.
The Court applied the same framework to French rules allowing limits on driving applications that rebroadcast information about certain roadside checks. Such restrictions may be justified on public security grounds, provided they also meet the procedural and proportionality requirements.
The judgement also addressed when an online service can avoid liability for information it stores. The Court said a provider may lose the legal protection normally available to hosting services when it has knowledge of or control over the information.
Such control may exist where an algorithm determines how, when, and in what order information is rebroadcast. The French court must now decide whether the national measures and the services involved meet the conditions set out by the EU court.
