Investigation into Adult Websites for Non-Compliance with Minors’ Access Restrictions

Four adult websites are currently under investigation by the European Commission in accordance with the Digital Services Act (DSA) for purportedly inadequate age verification measures for their users.

The Commission, responsible for drafting and enforcing European Union legislation, is scrutinizing Pornhub, Stripchat, XNXX, and XVideos as part of this inquiry. This investigation follows earlier requests for information submitted to Pornhub, Stripchat, and XVideos last June regarding their strategies for protecting minors from adult content.

The DSA, which took effect in November 2022, emphasizes stringent restrictions on access to adult material online. This legislation specifically targets Very Large Online Platforms (VLOPs), defined as platforms with more than 45 million users.

Article 28 of the DSA mandates these platforms to implement:

“…appropriate and proportionate measures to ensure a high level of privacy, safety, and security of minors, on their service.”

Furthermore, Article 35 requires that VLOPs undertake:

“…targeted measures to protect the rights of the child, including age verification and parental control tools, tools aimed at helping minors signal abuse or obtain support, as appropriate.”

This investigation aligns with the Commission’s recent publication of draft guidelines aimed at enhancing the protection of minors online across all VLOPs, not limited to adult-oriented sites. These guidelines advocate for the implementation of age verification procedures. The Commission is soliciting public feedback on this initiative until June 10.

Age Verification in the United States

This is not the first instance where significant adult platforms have confronted age verification challenges. Several U.S. states have enacted laws mandating age verification for adult websites, which led Pornhub to restrict access to its services in those regions. Pornhub opted for this drastic measure over complying with age verification protocols, citing concerns over privacy:

“There are multiple ways that a user can prove their age, but any effective method requires them to submit some form of personally identifiable information (PII), like a driver’s license. By assigning this responsibility to the platform(s) visited by a user, this means submitting private information multiple times to adult sites all over the internet, while normalizing disclosure of PII across the internet. This is not a privacy-by-design approach.”

Pornhub further contended that its traffic plummeted by 80% when it attempted to enforce age checks, suggesting that users would seek adult content from alternative sources, including illegal outlets, if confronted with age verification requests.

Safe Age Verification Methods

The Commission intends to introduce a Digital Identity Wallet for identification purposes by the end of next year. In the interim, a dedicated age verification application is expected to roll out this summer, leveraging the same technology as the wallet. This application aims to allow users to confirm their age without disclosing any additional personal information.

Being classified as a VLOP under the DSA poses significant liabilities. Non-compliance can lead to fines of up to 6% of a platform’s annual global revenue, or even potential exclusion from operating within the EU. In March 2024, Pornhub, XVideos, and Stripchat initiated legal proceedings against the EU concerning their VLOP designations. Pornhub claimed that the Commission miscalculated its user base and contested the obligation to maintain a publicly accessible database of advertisements featured on its platform.

As part of this investigation announcement, the EU recently stated that it would reclassify Stripchat, deeming it not to have a sufficient number of EU users to qualify as a VLOP. Consequently, Stripchat will not need to meet these compliance requirements after September.

Nevertheless, this reassessment does not exempt Stripchat or other smaller adult platforms from scrutiny. The European Board for Digital Services (EBDS) has launched an initiative to enhance monitoring and regulatory oversight of these platforms, which includes sharing information regarding age verification compliance.