German court upholds ban on Cyprus-based adult sites

German courts have taken a further significant step in clarifying the complex question of jurisdiction over the regulation of the internet within the EU by making it clear that the German government can take action against pornographic websites based in other EU states that breach German laws on child protection.

Two operators of adult sites had challenged a ruling by a state regulator that they must implement an approved mechanism for preventing children from accessing their content.

Dusseldorf's administrative court rejected complaints by the unnamed operators that child-protection regulations in Germany did not apply to them because they were established in another European Union country.

Specifically, the judgement of the court was that "the decision taken by the Media Authority of North Rhine-Westphalia state to ban the sites in Germany didn't breach national, European or international law."

While there is a strong chance the ruling will be appealed, as the sites subject to the ruling seek to delay its impact, each step in the legal process reduces their chances of success. In other words, it looks likely that adult sites will have to implement age verification for their German audiences unless they are prepared for a lengthy and expensive legal fight.

This development is just one more in a series of legal and regulatory changes driving towards age verification for adult content across Europe. In France, the CSA, and its successor, Arcom, are already tasked with implementing this change. In the UK, the Information Commissioner is under pressure to prevent such sites from using children's data in relation to such material. The Audio-Visual Media Services Directive is progressively being adopted by Member States, requiring video-sharing platforms to keep kids away from 18+ content. Indeed, the Cypriot Parliament will this week pass the law required to transpose the directive, enabling its regulator, the Cyprus Radio and Television Authority, to plan enforcement against some of the largest global porn sites which are based on the island, to whom the jurisdictional argument will no longer be available at home as well as abroad.

Germany claims to have the longest record of seeking to protect children online from adult sites, and with this comes a well-developed requirement from the regulators for how sites should comply. It dates back to the agreement of the Jugendmedienschutz-Staatsvertrag (Interstate Treaty on the protection of minors), referred to as JMStV, in 2002.

Websites with adult content must use a solution that has been tested and then signed off by the Federal Commission for the Protection of Minors in the Media, or Kommission für Jugendmedienschutz ("KJM").  

Initially, under the JMStV regime, in-person verifications were required with adults visiting a Post Office to prove their age. The regulators moved on fairly recently to allow for video conference-based checks. A few online age verification providers that offer users a more comprehensive range of methods have recently secured approval.

VerifyMyAge was one of the first of this new breed of AV providers to be considered robust enough by the KJM. It has since proven its capabilities as the sole age verification provider for eBay in Germany. Demonstrating the ability to validate German government-issued ID and seek age confirmation through the German credit referencing system, Schufa.

VerifyMyAge is also approved by the FSM - the German Association for Voluntary Self-​Regulation of Digital Media Service Providers, which is an independent organisation recognised by KJM.

So, suppose your site includes adult content and is accessed by users located in Germany without an approved mechanism for age verification. In that case, you are today not operating in compliance with German law and face the prospect of access to your site being blocked at any time by internet service providers, cutting off your access to that market overnight.  

As ever, it is always a lot easier to lose such access than it is to regain it, and sites must expect to lose audience share and search rankings while they are offline for weeks or months while they seek to add age verification and then persuade the authorities to remove the block. So, acting now is by far the lowest-risk strategy.

Even if they do not immediately impose a policy requiring 100% of users to prove they are over 18, sites are strongly advised to begin to persuade their existing customers to complete privacy-preserving age-verification now on a voluntary basis, to avoid the risk of a catastrophic overnight loss of traffic when the threat of regulatory action forces sites to turn away any user who has not already completed a verification. Customers could be offered incentives if they complete age verification, such as temporary access to premium content. Every 1% of the user-base which does so is 1% less loss of audience when the site makes age verification mandatory.

And even if a site does not verify their users now, it is time to begin selecting an age verification provider and putting in place the required integration, so there is no unavoidable delay to move into compliance when the regulator does come knocking on the door. Being able to respond that you are already in the process of onboarding an age verification service may be enough to forestall a block on access to your site.

Finding a supplier now also connects you to an expert in a complex field who can work with a site to select the most appropriate strategy for age verification, minimising user friction and maximising pass rates, so audience and traffic levels are preserved through the process. The sooner you start, the less risk there is of a disastrous impact on your top line.