Court/Judicial body: Paris Court of Appeals
Citation: Dossier N. 01/03637
Date: 2 April 2002
Instrument(s) cited: European Convention of Human Rights, Article 10 (freedom of expression) Penal Code, Article 227-24 (prohibits the distribution of pornographic or violent messages that are likely to be seen by minors)
Background: Mr. E, a publisher of a porn website, was investigated after a complaint concerning his site was filed with a telephone hotline regarding child abuse. The police concluded that although the site did not contain images of pedophilia, but it did contain pornographic images which were fully accessible to minors, which may constitute a crime under the Penal Code. Mr. E argued that he placed numerous precautions on the site to prevent access by minors and to inform parents of the option to block the site. For example, when the site is first accessed, a flash warning stating “strictly forbidden to minors” comes on the screen with a link to allow parents to block the site. Further, the user must click an entry button to continue on to the site where they are prompted to provide a credit card number or download software to allow usage of the site. Mr. E further argued that his right to freedom of expression under the European Convention of Human Rights was unduly interfered with by Article 227-24 of the Penal Code, which prohibits distributing pornographic or violent messages likely to be seen or perceived by minor. Lastly, it is the parents of minors, he argued, who have the duty to exercise caution and prevent their children from accessing his site.
Issue and resolution: Freedom of expression. Whether publishers of pornographic websites have the responsibility to take precautions to ensure minors do not access the site or whether instead this duty lies with parents when allowing their child access to the Internet. The court held that the duty of precaution lies with the publisher of a pornographic website, not with the parents of a child who could be exposed to the site.
Court reasoning: First, the court referenced the police investigation, which showed that the incriminating sites could likely to be seen by any person having internet access, including minors. Next, the court rejected the publisher’s argument that he addressed the issue of his site being accessed by minors by placing precautionary steps on the site, because these steps occur after the user has already entered the site. These steps, therefore, do not prevent the viewing of pornographic photos and inappropriate text. The court noted that the restriction of the publisher’s freedom of expression was not disproportionate to the legitimate aim of the legislature to protect against such sites by minors, whose mental, physical, and moral development is still in formation.
Link to full judgement: http://juriscom.net/wp-content/documents/caparis20020402.pdf