[Translated from French]
The Haut Conseil de l’Égalité entre les hommes et les femmes (HCE) (High Council for Equality between Men and Women) has warned of the proliferation on the Internet of content constituting offences of sexual assault, rape or paedocriminality, with too easy access for minors. It recommends stepping up the fight, in particular by making better use of the existing criminal arsenal.
In a decision handed down on 5 January 2023, the French Supreme Court (Cour de cassation) made an important clarification to Article 227-24 of the Criminal Code. According to this article, “the fact (…) of producing, transporting or disseminating by any means whatsoever and whatever the medium, a message of a violent nature, inciting to terrorism, pornographic (…) or of a nature seriously prejudicial to human dignity (…) is punishable by three years’ imprisonment and a fine of 75,000 euros when the message is likely to be seen or perceived by a minor”. And according to the Cour de cassation, this text applies “even if access by a minor to the messages results from a simple declaration by the minor indicating that he or she is at least eighteen years old”. In other words, publishers of pornographic videos must find a more effective way of preventing minors from accessing their content than simply declaring their age, or risk being prosecuted.
The problem is made all the more acute by the fact that some of the content available on these platforms falls within the scope of several criminal offences. It is against this backdrop that the French High Council for Equality between Men and Women (HCE) recently published a report on the spread of pornocriminality, highlighting the risks incurred as a result of the ever-increasing consumption of content by ever-younger users.
THE FINDING: ILLEGAL ACTS FILMED, VIDEOS ILLEGALLY DISTRIBUTED
The HCE report notes the existence of ten or so categories of pornographic videos, some of which are particularly violent, promoting misogynist hatred and rape culture. These videos include sexual assault (article 222-27 of the Penal Code), rape (art. 222-23, Penal Code), child pornography (art. 222-22) and child pornography (art. 227-23-1), all of which are punishable offences, as is the sharing of these videos on networks, as they incite violence and hatred (L. 29 July 1881, article 24).
According to the HCE, the proliferation of this type of video depicting illegal acts, and the ease with which it can be accessed, has the effect of altering the vision of healthy sexuality for consumers, who are increasingly young: 51% of 12-year-old boys consume it every month, and their first exposure to pornography begins at the age of 10. This illegal content stems from practices that are outside the law, in which pornography producers engage in pimping, sex trafficking or child pornography.
THE INEFFECTIVENESS OF THE PHAROS PLATFORM
According to the HCE, the taboo surrounding pornography contributes to the fact that platforms disseminating illegal content continue to benefit from a “false belief in legality”. There is a platform called “PHAROS”, set up in 2009, for reporting manifestly illegal content on the net: this is the “Platform for harmonising, analysing, cross-checking and directing reports”. It is responsible for centralising reports in accordance with the French law on confidence in the digital economy (LCEN) of 21 June 2004.
Article 6-I-7 of the LCEN aims to prevent so-called child pornography (featuring children), incitement to violence, including sexual and gender-based violence, and offences against human dignity, by means of repressive measures, in particular through reporting. However, despite the many reports made about them, violent and sexist pornographic content, involving torture and degrading treatment, is not removed from pornographic sites. In fact, in its report, the HCE presents tests carried out on the largest platforms displaying pornographic content: none of the content reported has been removed, even though it would qualify as “child pornography” within the meaning of the LCEN. The association Osez le féminisme had carried out the same operation before the HCE, obtaining the same result.
The findings confirm the risks of minors being exposed to pornocriminality, which is contrary to article 227-24 of the French Penal Code, which was strengthened on this point by the law of 30 June 2020, requiring filtering devices to be installed on entry to the sites in question. Platforms were thus required to put in place measures to prevent the risks of minors being connected. The CNIL, which was heard by the HCE, states that “the General Data Protection Regulation of 2016 does not preclude online age checks for access to pornographic sites”, and even adds that it might be possible to introduce checks using bankcards. Alternatively, a device for analysing facial features could also be introduced.
THE HCE’S RECOMMENDATIONS
According to the HCE, the European authorities must “take up this issue”, starting by supporting the draft European regulation on online paedo-crime. It is also proposed that pornography be included under the heading of sexual exploitation in the European directive of 5 April 2011 on trafficking in human beings. The report also recommends criminalising the illegal sharing of sexual content, particularly intimate content distributed without consent: this could be included in Article 7 of the draft directive on violence against girls and women.
UPDATE THE DEFINITION OF PROCURING
Similarly, the HCE urges the authorities to act more firmly, in particular by legally defining prostitution and procuring, so that national laws can be better applied in the event of litigation. By redefining procuring, it would be possible to take into account all forms of commodification of sexuality, particularly those present on pornographic content platforms. In addition, the HCE proposes that pornography be assimilated to “filmed sexual exploitation”, a practice that is developing as a result of the expansion of digital technology. Jurisprudence has a poor grasp of prostitution on digital platforms: a ruling of 27 March 1996 shows that the Court of Cassation has stuck to a purely physical definition of prostitution: “prostitution consists of lending oneself, in return for remuneration, to physical contact of any kind, in order to satisfy the sexual needs of others”.
MAKE BETTER USE OF EXISTING CRIMINAL OFFENCES
The Haut Conseil de l’Égalité (High Council for Equality) also asserts that it is necessary to introduce a criminal policy equating certain forms of pornography with sexist and sexual violence, based on existing offences: exposure of minors to pornography (art. 227-23 C. pén.), child pornography (art. 223-27), incitement to hatred and violence (law 29 July 1181, art. 24). The HCE also advocates training magistrates on this issue, by including a module on pornocriminality in their initial and in-service training.
FACILITATE THE BLOCKING OF SITES THROUGH THE ISP
Lastly, the HCE calls on the Pharos reporting platform to act effectively, through collaboration with the competent authorities and Internet service providers (article 6-1 of the law of 21 June 2004), in order to remove or block illegal content, by extending its administrative police powers to content that glorifies physical and sexual violence, which could be done by assimilating it to acts of torture and barbarism.
The publication of this report therefore seems to reflect a growing awareness of the dangers of certain forms of pornography and the inaction of institutional players. On 18 October 2023, the Court of Cassation ruled that a child protection association can request the blocking of Internet access to a pornographic site accessible by minors, without going through the publisher (i.e. the person who broadcasts the site): all it has to do now is ask the Internet service provider directly (i.e. the person who transmits the site, such as Orange, Free, Bouygues Télécom, etc.). This is a major step forward for these associations, faced with publishers who are often based abroad.
This article was written, when it was first published, as part of a partnership with the Master 2 in Electronic Media Law at the University of Aix-Marseille, between October 2023 and January 2024. More articles can be consulted on the website of the Institut de recherches et d’études en droit de l’information et de la culture (IREDIC).
Source: https://www.lessurligneurs.eu/rapport-sur-la-pornocriminalite-une-lutte-plus-ferme-contre-limpunite-de-lindustrie-pornographique/