As is known, the wheels of justice move slowly, and European law can be the engine of its destruction. This is demonstrated by the example given by the Düsseldorf Administrative Court.
There, pornography provider Aylo Freesites, which operates from Cyprus and operates the Pornhub and Youporn portals, was successful with an urgent appeal. This was against the North Rhine-Westphalia Media Authority’s instructions to two access providers to block the page. This will not happen until the ongoing appeal process in the main case at the High Administrative Court has been decided.
The European Court knows better
The fact that the ban is happening is legal nonsense. It comes from the European Court of Justice. It found that the German Youth Media Agreement violated major applicable EU law. Member states can only restrict the “free movement of digital services” under certain conditions. German youth media protection no longer meets these requirements. That means: a free ride for pornography service providers, even if they violate youth media protections and lack useful age verification.
In 2020, media regulator NRW took up the issue using Aylos as an example and has won all cases since then. The Administrative Court of Düsseldorf and the High Administrative Court of North Rhine-Westphalia rejected Aylo’s application for temporary legal protection (suspension of the ban). The Düsseldorf Administrative Court also ruled in favor of the media watchdog regarding the ban itself. And they did the same thing again and rejected Aylo’s application challenging the ban: “the prohibition order against the service provider itself” remains “enforceable”.
But this is of no use to the media regulator if it is not permitted to say to the access providers, namely the telecommunications companies that put the provider’s content on the network: Leave it alone.
What further confuses this case is the existence of two conflicting European Union laws on this matter. The Digital Services Act (DSA) states that the EU Commission is responsible; The Audiovisual Media Services Directive (AVMSD) assigns tasks to member states. The Düsseldorf Administrative Court referred to the DSA, the courts in Berlin, Ludwigshafen and Munich used AVMD and rejected Aylo.
This is what is happening with the “free movement of digital services” in the EU. Media regulator NRW filed a complaint. Apart from the “not easy” question of national and European regulations, said NRW’s head of media regulator Tobias Schmid, “the main thing is how we can ensure efficient protection of children online”. It also became clear “that the European Commission, which is also responsible for enforcing European law, must be asked to intensively enforce this law.” “The children affected may not care who protects them, this has to happen.” That’s how it is.
