Pornhub & Co.: Providers defend themselves in court against blocking orders

Several German internet providers are taking legal action against the blocking orders issued by the State Media Authority of North Rhine-Westphalia (LfM NRW) against hardcore portals such as Pornhub and YouPorn. Vodafone, for example, has filed a lawsuit against the orders with the Düsseldorf Administrative Court. At the heart of the matter is the question of whether the LfM is still responsible at all or whether the EU Commission now ultimately has the say in this area with the Digital Services Act (DSA). The ruling could have far-reaching consequences for the availability of online pornography in Germany. For example, the judges will have to clarify whether and how national laws can be enforced in the digital age.

"As we see it, the DSA represents full harmonization," a Vodafone spokesperson told Netzpolitik.org, explaining the reasons for taking the case to court. As the DSA also regulates the protection of minors on the Internet, the provisions of the Interstate Treaty on the Protection of Minors in the Media (JMStV), to which the NRW media watchdogs refer, would become inapplicable. Vodafone did not comment on the details of the lawsuits when asked by heise online.

Web blocks can be easily circumvented

The LfM is calling for strict age controls on erotic platforms on the basis of the JMStV, such as ID or facial scanning, in order to protect minors from pornography. This is likely to deter many users, who have been able to access millions of porn videos without registering and largely anonymously.

At the instigation of the NRW media regulator, the Commission for the Protection of Minors in the Media (KJM), which was ultimately responsible, initially ordered the major German access providers to block the xHamster porn portal in spring 2022. Vodafone, Deutsche Telekom, 1&1 and Pÿur implemented the blocks in this case and later on Pornhub and YouPorn. In such cases, however, the permissive portals simply change the domains and can be accessed under .org instead of .com, for example. Alternatively, they can be accessed via VPN using foreign IPs. The KJM itself admits that such web blocks can be circumvented. However, they are an additional hurdle and prevent accidental and unwanted confrontation with such offers.

EU Commission relies on the DSA

According to the report, Pÿur has filed a lawsuit in Berlin against the blocking orders. However, the provider has agreed with the media supervisory authority responsible there to wait for the Düsseldorf decisions. The situation is similar at 1&1: the lawsuit has also been put on hold until then. The companies are receiving fundamental support from the EU Commission. A spokesperson told Netzpolitik.org that she is "firmly convinced that measures at EU level are more effective in protecting minors from harmful content on online platforms".

According to the Commission representative, the DSA provides for a clear supervision and enforcement system. Work is currently underway on an EU-wide, interoperable and data protection-compliant app for age checks based on the planned digital wallet. The Commission regularly discusses progress with national authorities. Pornhub recently reported – together with other porn platforms – significantly lower user numbers. According to the report, the strictest DSA regulations no longer apply to the portal. Pornhub & Co. have also announced legal action against the new obligations. A fundamental dispute over the authority of media watchdogs to block porn has also resulted from an amendment to the JMStV.

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