EU court adviser suggests porn site age checks are bound by 'country of origin' rules

(CN) — A legal adviser to Europe’s top court said Thursday that French age checks affecting Czech porn sites can only stand if Paris follows the EU’s procedures.

He also suggested blackout rules on a driver app could survive if they stayed narrow and tied to road safety, like stopping drivers from dodging police checkpoints.

The guidance came from Advocate General Maciej Szpunar, a senior legal voice at the Court of Justice of the European Union in Luxembourg. His opinions aren’t binding for the judges, but they often set the tone for where the final ruling will land.

The first dispute goes back to 2020, when France rewrote its criminal code to say it’s still a violation if minors can get into porn sites with nothing more than a “declaration by that minor stating that he or she is at least eighteen.” Lawmakers then handed the media watchdog ARCOM the power to warn sites that don’t comply and, if needed, get court orders to shut them down.

Two Czech companies, WebGroup and NKL Associates, which run adult websites, fought back. Forcing them to bolt on age checks, they argued, crossed the line and clashed with the EU’s E-Commerce Directive, a 2000 law that sets the basic rules for online services across the bloc. That law also introduced the “country of origin” rule: if you’re set up in one EU state, it’s that regulator you answer to, not every country your site reaches.

The second fight came from France’s road safety code. To stop drivers from dodging alcohol and drug checkpoints, the government can order navigation apps like Coyote — a French service where drivers share real-time alerts about traffic and police stops — to switch off that alert function in a set area for up to 12 hours.

A 2021 decree locked the rule in, with penalties of up to two years in prison and €30,000 ($35,000) in fines for providers that ignore it. Coyote pushed back, arguing the blackout was basically a form of banned general monitoring under EU law.

At the heart of both cases is how far the EU’s “coordinated field” really stretches, the rule that member states are supposed to respect each other’s digital regulations. Szpunar stressed that national measures aimed at online service providers fall inside that field, even when they’re written into criminal law. In other words, just calling something a crime doesn’t take it out of the EU’s digital rulebook.

That means France’s rules don’t automatically trump the country-of-origin principle. But EU law does leave room for exceptions when bigger public interests are on the line. A state can step in if the measures are “necessary for one of the following reasons: public order, in particular the prevention, investigation, detection and prosecution of criminal offenses, especially the protection of minors.”

On the porn cases, Szpunar stressed that child protection is a core value in EU law but must happen with tools the bloc already put in place. Those rules, he noted, “reflect the consensus reached by the member states regarding their responsibilities in protecting minors.” France, he warned, must work within that framework, since challenging it would only erode the safeguards and trust between countries.

As for the navigation app fight, Szpunar dismissed the idea that France’s blackout rule amounted to mass surveillance. The measure, he noted, doesn’t require companies to read user content but simply to pause certain alerts within a defined area and timeframe.

The opinion spotlights the tug-of-war between Europe’s promise of open digital borders and France’s bid for tougher rules. For the companies, it’s a test of whether an EU law written 20 years ago still shields cross-border platforms from national crackdowns.

The companies and French authorities did not immediately respond to requests for comment.

The court’s ruling, expected in the coming months, could set the tone for how far governments can go in curbing online services in the name of public protection.

Courthouse News reporter Eunseo Hong is based in the Netherlands.