Telekom and Vodafone do not have to block Pornhub and YouPorn for now

There is renewed movement in the case law surrounding the controversial website blocks against erotic portals. Most recently, after several administrative courts, the Higher Administrative Court (Oberverwaltungsgericht, OVG) Rhineland-Palatinate also ruled in an urgent procedure that access to the two German-language portals of Pornhub and YouPorn via the provider 1&1 will remain blocked at this time.

The Administrative Court of Düsseldorf sees the matter differently in a dispute involving Deutsche Telekom and Vodafone, now though: According to it, the Landesanstalt für Medien Nordrhein-Westfalen (LfM NRW) is not allowed to force the two providers to block the erotic portals of the platform operator Aylo, based in Cyprus, for now.

In the dispute, which has been dragging on for years, the provider of the pornographic websites sought the annulment of prohibitions by the LfM NRW and blocking orders from the administrative court. It filed urgent applications, justifying them with "subsequent far-reaching changes in European and national law".

JMStV not compatible with EU law

The 27th chamber of the Düsseldorf court acknowledged Aylo's objections at least partially for the first time on Thursday (File Nos.: 27 L 805/24 and others). It suspended the further enforcement of the blocking orders until a decision in the main proceedings. The judges justify this as follows: According to the latest case law of the European Court of Justice (ECJ), the provisions of the Jugendmedien-Schutzstaatsvertrag (JMStV) underlying the blocking orders violate EU law, which takes precedence. Accordingly, the free movement of digital services from another member state may only be restricted under certain conditions, which the JMStV provisions in force in Germany no longer met.

The background is primarily the country of origin principle of the E-Commerce Directive of 2002. This states that an EU country cannot simply regulate a company based in another member state. Exceptions are only possible after going through a formal process that includes notification of the country of origin and the EU Commission.

With a similar reasoning, a Paris administrative court also suspended proceedings involving Aylo in August. The parent company of Pornhub, YouPorn, and Redtube had previously taken these portals offline in France itself. It wanted to protest against the application of a new French law that has obliged operators of adult websites since June to introduce robust age verification systems (AVS) and block users under 18.

Abrupt U-turn in case law

Media lawyer Marc Liesching considers it questionable for another reason: whether regulators can continue to take action against porn portals abroad within the EU with reference to youth protection. In 2022, the state legislators added a minor new regulation to the JMStV. It fundamentally stipulates that within the EU, based on the Audiovisual Media Services Directive (AVMD Directive), the scope of the JMStV is limited to video portals established in Germany.

However, the Administrative Court of Düsseldorf upheld the prohibition orders against Aylo. They can therefore continue to be enforced in principle. The chamber rejected the provider's renewed urgent applications due to a lack of legal interest in protection, as no further enforcement measures were threatening against it anyway and separate legal protection was available to it against the blocking orders.

All parties involved can appeal against all decisions, which would be decided by the Higher Administrative Court (OVG) NRW in Münster. In previous years, Aylo's applications for provisional legal protection against the LfM NRW's notices had been unsuccessful both before the Administrative Court of Düsseldorf and the OVG.

In the main proceedings, the Administrative Court of Düsseldorf had also already considered these prohibition orders lawful with judgments of April 4, 2023, based on the state of the law at the time. The appeals against them are still pending before the OVG. The providers concerned, including Telefónica and Pyür, are themselves resisting the blocking orders.

(mho)