Pornhub challenges natural names disclosure under digital rules at Europe’s highest court

Aylo, Pornhub’s parent company, is appealing to the Court of Justice of the European Union (CJEU) to avoid having to disclose the natural names of users in its ad repository, as required by its Digital Services Act (DSA) designation.

In its appeal, Aylo has “specifically requested relief from disclosing the natural names of those who advertise on Pornhub, which includes sex workers and performers, because it will make their names publicly available and searchable in the repository”, a spokesperson told Euractiv, citing the safety of their community as a priority.

Separately, Aylo has appealed against the European Commission’s designation of Pornhub as a Very Large Online Platform (VLOP) under the DSA, the EU’s landmark content moderation law. Other companies like Amazon and Zalando have similarly tried to appeal their designation.

The DSA considers platforms or search engines with over 45 million monthly users in the EU as VLOPs or very large online search engines (VLOSEs), which have to follow certain obligations, including those related to transparency.

The list of companies includes social media networks Instagram and TikTok, search engines such as Google Search and Bing, and e-commerce sites like AliExpress.

Under the DSA, Pornhub is required to publicly disclose a database of all its advertisers, including details about the ads and how they are targeted.

Aylo’s bid for an injunction to delay publishing advertiser details was already rejected by the lower-instance General Court on 4 July, reasoning that postponing this requirement could disrupt the EU’s digital legislation goals and alter the competitive landscape, outweighing the potential financial damage to Pornhub, MLex reported.

In response to Aylo’s protest about disclosing its ad repository back in March, a Commission spokesperson told Euractiv at the time that advertising transparency is crucial for letting consumers and businesses know who is advertising, the criteria used, and how long ads are shown.

Not everyone is convinced by Aylo’s case about natural names.

“Sex workers’ safety is a must, but now it looks like Aylo wants to use this as an excuse to delay the application” of the DSA, Alessandro Polidoro, an independent lawyer coordinating the coalition of NGOs called Digital Intimacy Coalition, which pushed for porn VLOPs designation, told Euractiv.

Amazon had tried to suspend its DSA obligation to make its ads repository publicly available, in the CJEU but the court decided against Amazon on 27 March.

The Aylo spokesperson said the company had disclosed their ad repository and has no problem doing so, but it is still concerned at the consequent disclosure of natural names.

Once made public, this data would be difficult to manage and could severely damage advertising strategies and partnerships, the Aylo spokesperson said, echoing Amazon’s arguments.

Polidoro said that “the majority of Pornhub’s ad revenue does not come from individual performers or natural persons”. He also said that Pornhub gave access to the repository exclusively to the European Commission.

“Natural persons are entitled to be recognised in legal documents through stage names, pen names, or other forms of artistic pseudonyms. By this logic, the court could rule that stage names can be used by natural persons in the ad repository as well,” Polidoro said.

This would help Pornhub comply with the DSA and also protect the personal data of individual sex workers who advertise on the site, the lawyer said.

Designation problems

The three pornography websites first included on the VLOP list as adult platforms, Xvideos, Stripchat, and Pornhub, sued the EU over their obligations in March. In June, the EU executive requested detailed DSA compliance information from the three sites.

In appealing its VLOP designation itself, Aylo argued that the Commission miscalculated its user number and said Pornhub does not cross the DSA’s threshold of 45 million monthly active users. The Commission maintained that its figures were correct and Aylo’s legal filing regarding this aspect remains under review.

This month, the Commission designated XNXX as a VLOP, making it the fourth adult site required to follow the digital rulebook.

[Edited by Eliza Gkritsi/Zoran Radosavljevic]

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