Access providers not initially required to block pornographic content
The Administrative Court of Düsseldorf decided in several rulings on November 20, 2023 (Case No. 27 L 8052/27 L 8062/27 L 13472/27 L 13482/27 L 13492/27 L 13502) during a preliminary injunction proceeding, that access providers are not currently obliged to block access to certain pornographic internet offerings. This interim result is based on the prerequisites that need to be examined within the framework of preliminary legal protection; a final assessment remains reserved for the main proceedings.
Background of the proceedings
The responsible state media authority had issued orders to various access providers to block access to selected pornographic platforms. According to the authority’s view, the affected online offerings violated the age verification requirements provided in the Youth Media Protection Treaty, as users were not required to provide sufficient proof of minimum age.
Consequently, the affected access providers requested judicial interim relief. They particularly argued that the obligation to impose network blocks was disproportionate and that the principle of net neutrality was being violated. Furthermore, they stated that a final clarification of liability issues was essential for the establishment of a block obligation.
Judicial assessment
In its ruling, the Administrative Court of Düsseldorf clarified that the immediate blocking order does not currently appear to be mandatory. The decision’s focus is on examining whether access providers have a duty to block access to websites with pornographic content directly based on existing youth media protection laws.
The court explained that, within the framework of the interim proceedings, the interests of the parties involved must be comprehensively weighed against each other. It was pointed out that implementing the blocking measures would involve significant infringements on fundamental rights – particularly with regard to freedom of information and entrepreneurial freedom of action. Furthermore, it remains unclear whether the website operators themselves should not be primarily held accountable.
According to the Administrative Court, there are substantial doubts about the proportionality and effectiveness of provider-based access blocks, especially in the current state of affairs. The disputed legal issues will continue to occupy the main proceedings.
Outlook and further proceedings
The decision was issued as a provisional regulation in interim legal protection. The Administrative Court of Düsseldorf will determine the final legality and potential permanent obligations of access providers at a later date in the main proceedings. Therefore, the media law and supervisory assessment remains open.
It should be noted that until a final clarification – considering the presumption of innocence and subject to any divergent decisions – there is no duty for access providers to independently establish access blocks for the contested offerings under the current youth media protection law.
Source Note: The reasons for the decision can be found at urteile.news, Administrative Court Düsseldorf, 11/20/2023.
Legal classification and advisory needs
The preliminary result of the Düsseldorf Administrative Court highlights the complexity within the tension between youth protection, fundamental rights, and the responsibility of access providers. Companies facing similar media law inquiries are regularly confronted with significant legal questions in IT law. For further factual examinations and assessment of individual risks, detailed legal analysis is recommended. If needed, MTR Legal is available with comprehensive legal advice in IT law at your disposal.
