Three pornography sites sue EU over digital rulebook compliance
The three pornography websites included on the Digital Services Act’s very large online platforms list are suing the EU over their new obligations, Euractiv learned on Thursday (7 March).
The EU’s Digital Services Act (DSA) aims to create a safer digital environment by clarifying the assignment of responsibility for actors operating online, including how to deal with illegal content online, like selling or purchasing dangerous goods, but also harmful but legal content like hate speech.
Under its rules, online platforms used by more than 10% of the EU’s population monthly, meaning 45 million users per month, entail a ‘systemic risk’ for society; hence they must follow a specific regime of content moderation, including transparency and risk management obligations.
As Euractiv reported in December, pornography websites XVideos, Pornhub, and Stripchat were added to the DSA list of very large online platforms (VLOPs), where they joined 19 other platforms such as social media networks Instagram and TikTok, search engines Google Search and Bing, and retailers AliExpress and Zalando.
Alessandro Polidoro, an independent lawyer coordinating the Coalition of NGOs that pushed for porn VLOPs designation, said their decision “to challenge their designation is outrageous and clearly an attempt to delay the enforcement of the DSA”.
“This is a statement of the real priorities of these tech giants: their profits and reckless business models are more important to them than the safety of people. We need to hold them accountable and finally counteract their overpower that is damaging users, workers and the entire sector,” Polidoro added.
DSA: Three pornography sites join EU digital rulebook’s ‘systemic risk’ list
Three pornography websites will have to abide by strict EU rules after being included on the Digital Services Act’s (DSA) very large online platforms list, the EU Commission announced on Wednesday (20 December).
The European Commission’s decision to include pornography sites on the list came after several civil society organisations urged the EU in October to designate major pornographic websites as VLOPs, pointing out that while the platforms had stated that they did not meet the DSA threshold, they were “very likely” to have more than 45 million monthly users in the EU.
Aylo, formerly known as MindGeek, the parent company of several pornography sites, including Pornhub, told Euractiv that it has decided to challenge its VLOP designation on two grounds.
“We believe the European Commission erred in its calculation of our user numbers”.
Aylo pointed out, as it had done in the past, that “Pornhub has 32 million average monthly active recipients of the service in the European Union, calculated as an average over the period of the past six months”.
Aylo believes the Commission’s decision on Pornhub’s designation happened “despite the extensive data and methodology explanations we provided to support our published figures. Therefore, we are exercising our right to take the legal route with our filing of an application before the General Court of the EU to annul the designation of Pornhub as a VLOP.”
In December, Commission spokesperson Johannes Bahrke explained to Euractiv that “the designation is the result of Commission investigations concluding that the three services fulfil the threshold of 45 million average monthly users in the EU”.
“We can use additional sources and expertise, like from the JRC [the Commission’s Joint Research Centre], to establish user numbers of an online platform – beyond what that platform might or might not have published,” he added at the time.
NGOs urge EU Commission to include porn websites in the ‘systemic risk’ club
Several civil society organisations have urged the European Commission to designate major porn websites as “very large online platforms” that have to follow a strict regime under the Digital Services Act (DSA), according to a letter seen by Euractiv.
Polidoro said that “porn VLOPs want to delay the enforcement of the DSA with legal loopholes related to the methodology used in counting their monthly users”.
“The EU must send a clear message to these tech giants that this will not be accepted. We have the right to know to whom they are selling our sensitive data and finally open the black box of their algorithms,” the lawyer added.
The reason why some find the provided number average of users for Pornbhub on the low side is because in October, Xvideos admitted that every month they have more than 160 million users in the EU.
AccessNow, a non-profit focused on digital civil rights, also said in May that, compared to the reported number of monthly users by Pornhub, “in March 2023 alone, [the] global website visits reached 2.5 billion” and, therefore, the number “seems unlikely”.
Another thing Aylo considers illegal is “the requirement under Article 39 DSA pursuant to which a VLOP’s advertising repository must be made publicly accessible.”
On this obligation, it has “also sought interim relief, which is what this action relates to”. This repository would have to include every advertisement that appeared on Pornhub in the prior 12 months.
“We will always comply with the law, including our obligations under the Digital Services Act, which we have been meticulously preparing for, and we hope that governments around the world will implement laws that protect the safety, privacy, and security of users”, Aylo said.
“We look forward to the facts being fully and fairly aired,” the company concluded.
The pornography platforms are not the first ones to challenge their designation on the systemic risk list.
In July, Amazon initiated proceedings to contest the European Commission’s decision, a month after another online retailer, Zalando, also filed a lawsuit. The American tech giant achieved a partial win by not having to disclose extensive details about its advertising repository.
Euractiv reached out to the other platforms in question for comments, but just like in December, XVideos’ contact form did not seem to work, while Stripchat did not provide an answer by the time of publication.
The European Commission did not respond by the time of publication of this article either.
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