Online Child Protection: The European Commission "Takes the Bull by the Porn"

The European Commission has just included three major pornographic websites on the list of “very large online platforms” under the European Digital Services Act. This measure should help to improve children’s safety on the internet.

Article first published in French in Valeurs Actuelles.

“Will the Commission include Xvideos, Pornhub, Xnxx and Xhamster on the list of ‘very large online platforms’ under the Digital Services Act and, if so, when?” The European Commission has just responded, not in writing, but through action, to this written question put at the beginning of November 2023 by five MEPs, including François-Xavier Bellamy (France - PPE). In decisions dated 20 December 2023, it designated the three major pornographic websites Pornhub, Stripchat and XVideos as “very large online platforms”. They now have four months to comply with the requirements resulting from this status.

Rectification of a strange omission

The European Commission, which is responsible for designating the websites to be covered by this status, if they have an average of at least 45 million monthly users in the EU, i.e. 10% of its population, designated an initial series of “very large online platforms” on 25 April 2023: Alibaba AliExpress, Amazon Store, Apple AppStore, Booking.com, Facebook, Google Play, Google Maps, Google Shopping, Instagram, LinkedIn, Pinterest, Snapchat, TikTok, Twitter, Wikipedia, YouTube and Zalando. Pornographic websites were thus conspicuous by their absence. As the MEPs put it in their written question, “it is surprising […] while the content of platforms such as Xvideos, Pornhub, Xnxx or xhamster, which are visited more often than some of those on the Commission’s list, often undermines people’s rights and dignity”. The statistics are clear: several pornographic sites are among the most visited in Europe and the world. According to Similarweb which ranks the world’s most visited websites in December 2023, Xvideos (which claims an average of 160 million users in the EU between August 2022 and February 2023) appears in 11^th place, ahead of Amazon.com (12). Pornhub comes next (13), ahead of TikTok.com (14). Xnxx ranks 15^th and Xhamster 23^rd, while Pinterest, for example, is only 32^nd, ahead of Stripchat at 46^th. However, Pornhub has claimed to be visited by 33 million users in the EU: this quite astonishing figure did not convince Brussels after investigation.

The Digital Services Act package, a tool for holding pornographic websites accountable

Adopted in October 2022, the Digital Services Act aims to “[ensure] a safe and accountable online environment”[1] and to “put into practice the principle that what is illegal offline is illegal online”[2]. While access to pornography by minors is prohibited in the real world, this Regulation should logically provide greater protection for children against exposure to content of this nature, which constitutes a serious sexual abuse. More and more children are falling victim to it, at an increasingly early age and with serious psychological and behavioral consequences.

The status of “very large online platform” is therefore of particular interest in this respect. It entails additional obligations, including in terms of annual assessment of systemic risks associated with the services offered by the platform, particularly with regard to “the dissemination of illegal content”, “any actual or foreseeable negative effects for the exercise of fundamental rights, in particular […] respect for the rights of the child”, as well as « any actual or foreseeable negative effects in relation to gender-based violence, the protection of public health and minors and serious negative consequences to the person’s physical and mental well-being » (Article 34), i.e. several areas of particular importance when it comes to pornography. Consequently, “reasonable, proportionate and effective mitigation measures, tailored to the specific systemic risks” shall be put in place (Article 35), which may include “(j) taking targeted measures to protect the rights of the child, including age verification and parental control tools […]”. For Thierry Breton, Commissioner for Internal Market, “creating a safer online environment for our children is an enforcement priority under the DSA”: the Commission is thus relying on the granting of “very large online platform” status to these three pornographic sites to improve online child protection.

Results achieved through cohesive and unified calls

The ECLJ welcomes this decision, as it is one of the recommendations made both in its recent report entitled “Combating Pornography – Regulating Access to Pornography”, as well as during the conference on 4 October 2023 on “The Dangers of Children’s Exposure to Pornography” organised at the European Parliament by Margarita de la Pisa Carrión (Spain - ECR), one of the signatories of the parliamentary question to the European Commission. In addition to this question, a letter sent to the Commission by some thirty NGOs also asked it to include pornographic platforms among the “very large online platforms” under the Digital Services Act.

The European Commission has therefore listened to the unanimous calls from politicians and civil society and, in so doing, has endorsed the opinion of the Parliamentary Assembly of the Council of Europe, which, in November 2021, invited States to “ensure that regulations on online publishing, such as the European Union’s Digital Services Act, are applied to all media, including pornographic websites”.[3]

By taking concrete action to make the internet safer for children, the European Commission shows that the Digital Services Act is a functional and genuinely useful instrument for holding all types of online platforms accountable, particularly those that are likely to endanger the health and safety of young people in Europe. However, pornographic websites may want to fight this decision, so it is now essential for the European Commission to carry out an exhaustive investigation into other platforms of this type that may meet the conditions for being subject to the enhanced obligations imposed on “very large online platforms”.

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[1] For a presentation of this regulation, see: https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-services-act_en

[2] « DSA : le règlement sur les services numériques vise une responsabilisation des plateformes », Vie publique, 5 juillet 2022 : https://www.vie-publique.fr/eclairage/285115-dsa-le-reglement-sur-les-services-numeriques-ou-digital-services-act#:~:text=Le%20futur%20r%C3%A8glement%20DSA%20(pour,europ%C3%A9en%20le%205%20juillet%202022 (our translation)

[3] PACE, Gender aspects and human rights implications of pornography, Resolution 2412 (2021), 26 November 2021, 10.4.2.