Europe Has Traded Away Its Online Porn Law
By Morgan Meaker
The landmark Digital Services Act has a glaring omission: It ditches plans to tighten rules that could have protected survivors of revenge porn and other forms of sexual abuse.
When someone Inês Marinho trusted shared an intimate video of her online without her consent in 2019, she compared it to a chronic disease she would have to live with for the rest of her life.
First the video was shared through WhatsApp, then Telegram and Twitter. Eventually it found its way onto popular porn platforms, including Pornhub and XVideos.
“It didn't show my face, but it had my name on it,” says Marinho, who is based in Lisbon, Portugal. After she wrestled with each platform to get the video taken down, Marinho founded an organization called #NaoPartilhes (#DoNotShare) that helps other people who have faced this type of abuse and runs education sessions in schools.
She also launched a campaign to raise awareness about the phenomenon across Portugal. In the first two days, she says she was inundated with more than 500 stories from people who had experienced “image-based sexual abuse”—an umbrella term that includes deepfake pornography, upskirting, and revenge porn. Researchers predict there are thousands more people across the EU—mostly women, but also men and people from LGBTQ communites—who are affected by this type of online harassment.
There is no European law enforcing the removal of videos or images that have been uploaded to pornography platforms without their subjects’ consent. But across Europe, people like Marinho were hoping the landmark Digital Services Act (DSA) would change that. A proposal buried within the text—called Article 24b—outlined new rules that would have required people uploading content to porn platforms to verify their accounts with a phone number and email address. The article would have also forced the companies behind the platforms to hire and train more moderators in image-based sexual abuse and have required them to take down content flagged by victims “without undue delay.”
But during the 16-hour negotiations that stretched from Friday night to Saturday morning last week, the proposal was ditched. Sources involved in the negotiations told WIRED the measure was traded away in last-minute political haggling. That has left women’s organizations across Europe disappointed, even as MEPs publicly celebrate the Digital Services Act’s wins.
“As ever, online abuse against women and girls gets marginalized and minimized, and I think that’s what we've seen here,” says Clare McGlynn, who specializes in image-based sexual abuse at the UK’s Durham University. “It’s not taken seriously.”
Article 24b was particularly aimed at drawing attention to mainstream porn platforms, which is where much of this content ends up, says Shanley Clemot McLaren, cofounder of a French group called Stop Fisha.( Fisha is French slang for “to publicly shame.”) “Passing this Article 24b within the DSA would have been necessary to not only symbolically and legally recognize the victims, but also underline the criminal offenses that [are being committed],” she says.
To reach agreement on the DSA, representatives from the European Parliament, European Commission, and European Council had to reach a political compromise. “Out of the EU Parliament demands, [the Council] just didn’t want to accept too many,” a source involved in the negotiations told WIRED. “So the Parliament has to choose which ones they prioritize to make a compromise.”
In the end, the Parliament chose to prioritize other issues, such as small and medium-size enterprise exemptions, website accessibility, and consumer protections, said the source. This account of the negotiations was supported by another person involved in the proceedings, who also asked to remain anonymous. Christel Schaldemose, who led the Parliament’s negotiating team, did not reply to a request for comment.
The suggestion that people uploading content to porn platforms should have to verify their accounts using phone numbers and email addresses was controversial due to privacy concerns. “We asked for a verification obligation with telephone number and email address from content uploaders because we see that in these [image-based abuse] cases, there's rarely any law enforcement because you can never identify the people [who have uploaded the content],” says Josephine Ballon, head of legal at HateAid, a German hate speech NGO that lobbied for 24b. “There are porn platforms where you do not even have to have a profile to upload things.”
However, concerns about privacy were justified, especially for people uploading content consensually to these platforms, says Asha Allen, advocacy director for Europe at the Center for Democracy and Technology. “It would actually also set a precedent for all user-generated content platforms,” she says, reflecting concern that once ID verification was endorsed at an EU level for porn platforms, it could be endorsed for social network sites like Facebook, TikTok, or Twitter.
Privacy concerns from sex workers and content creators could have been mitigated by using business instead of personal emails to verify users, says McGlynn. This extra step would have created enough friction in the uploading process to make people think twice before uploading, she says.
But it was not only the verification requirements of 24b that were shelved. “Not even the parts that would not have been a problem from a fundamental rights and privacy perspective were adopted,” says MEP Patrick Breyer, who is from the Greens/European Free Alliance group in the Parliament and opposed the ID requirements.
Some experts still hope that the EU will introduce new laws to protect women facing this type of abuse through rules the Commission proposed in March that would criminalize the non consensual sharing of intimate images. “The Directive on [gender-based violence] is a much more comprehensive tool for combating image-based sexual abuse because it is specific and criminalizes this abuse,” says Allen.
Under the EU’s Directive on Gender-Based Violence, the Commission proposed that non consensual sharing of images be criminalized, with jail time of up to one year. It’s unclear how law enforcement would find people uploading this material to sites that don’t require their contact details. The directive is currently being negotiated by the Council and the Parliament.
Regardless, the DSA remains a missed opportunity to tackle this issue, says MEP Alexandra Geese, from the Greens/European Free Alliance group. “[24b] would have protected girls and women from the huge risk of finding their nude images on porn platforms, mostly without even knowing about it,” she says. “It would have made a huge difference.”
Morgan Meaker is a senior writer at WIRED covering European business. Before that, she was a technology reporter at The Telegraph and also worked for Dutch magazine De Correspondent. In 2019 she won Technology Journalist of the Year at the Words by Women Awards.
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