Please note: Large portions of this post were rendered with the aid of translation tools offered in Alphabet and Microsoft products to decipher a judicial order originally written in Dutch. Translation irregularities and errors may be present in some text.
AMSTERDAM – A court in Amsterdam has ordered the operator of xHamster.com to remove all images for which the site cannot “demonstrate that all persons in the image have consented to the publication of that image material.”
In an order published yesterday, Judge Mieke Dudok van Heel prohibits Hammy Media, the operator of xHamster.com, from displaying footage that “has been secretly filmed and that shows persons who are (fully or partially) undressed in places where they believe they are unobserved… or has not been made professionally and shows persons who perform sexual acts in private to disclose and/or distribute… worldwide insofar as it concerns persons residing in the Netherlands; and… in the Netherlands insofar as it concerns persons who do not live in the Netherlands, unless Hammy Media can demonstrate that all persons in the image have consented to the publication of that image material.”
In a statement published by EOKM, attorney Otto Volgant, part of the legal team representing the Dutch organization in the matter, called the order “a historic ruling with major consequences for the entire porn industry.”
“The biggest player is Pornhub, which previously removed 10 million videos,” Volgant added. “Now it’s xHamster’s turn. Every day 30 million people look at that website. xHamster is located in Cyprus but must comply with Dutch law. It is high time that the porn industry took measures itself and no longer put videos online without permission. There really shouldn’t be any need for summary judgment at all.”
The decision comes in response to a complaint filed by the Dutch Online Child Abuse Expertise Office (in Dutch, the “Expertisebureau Online Kindermisbruik” or “EOKM”) against Hammy Media and a subsequent hearing held before Judge Dudok van Heel on March 27.
Representatives of Hammy Media had not responded to a request for comment as of the time of this article’s publication. YNOT will update the article if the company offers comment post-publication.
In December of last year, EOKM sent a letter to Hammy Media, with a copy of a previous court order pertaining to another adult site. According to the order issued yesterday, the letter spelled out the Dutch court’s earlier finding that operators of adult websites are prohibited from publishing visual material that “has been secretly filmed and that shows persons recognizable who can be seen (fully or partially) undressed on places where they feel unobserved” and “which is not professionally made and identifies persons engaging in sexual acts in private, insofar as the operator does not have the permission of the persons shown to publish this image material” – language very similar to that which appears in yesterday’s order.
In response to the EOKM letter, Hammy Media wrote that it has a “zero-tolerance policy with regard to illegal content, that all content is strictly controlled before publication (“strictly moderated”), that it adheres to the Terms and Conditions and in the User Agreement reserves the right to remove content that conflicts with this and that it has an adequate Notice & Takedown policy,” as the court stated in the order. Hammy Media’s letter also noted that the site had “removed some of the examples mentioned in the letter of December 6, 2022.”
Later in the order issued yesterday, the court notes that Hammy Media argued that “since October 2021 – the moment Mastercard tightened its rules for users of its payment services – it has had a strict policy (zero tolerance) to prevent illegal images from being visible on xhamster.com.”
After detailing the procedure Hammy Media described in its defense, the court writes that “(a)ll in all, Hammy Media believes that it can be seen as an example for other adult websites and is therefore surprised that EOKM is subpoenaing it.”
After summarizing the rest of Hammy Media’s defenses and establishing how the court has jurisdiction to hear the case, Dudok van Heel lays out why she finds Hammy’s arguments unavailing and how the relevant Dutch law has been violated by the site.
Under the relevant law, “Hammy Media must ensure that the persons concerned have given permission for publication, failing which such publication is unlawful,” Dudok van Heel writes.
“It can be deduced from Hammy Media’s own statements that the consent of the performers was not requested when publishing visual material before October 2021,” she adds. “Now it has not been alleged or proven that all such material (for disclosure of which the performer has not expressly granted permission) has been removed from the website (according to Hammy Media, it is only subject to remoderation ), this already constitutes sufficient grounds for the claims to be awarded in these interlocutory proceedings, in the same manner as in the judgment on the merits.”
The judge further observes that “despite the fact that there is no scope for furnishing evidence in preliminary relief proceedings” in this case Hammy Media “could have been expected to have been able to demonstrate, with regard to the ten films that EOKM has brought into the proceedings, that it required permission.”
“(Hammy Media) couldn’t do that,” the judge adds. “It submitted the details of only one uploader, noting that it cannot be determined whether that uploader (is) the one who appears in the video. Now that Hammy Media has submitted (virtually) no documents of the ten videos that pertain to permission and footage from before October 2021 is still being made public, it is sufficiently plausible for the time being that a large amount of footage is being made public on xhamster.com. of which it cannot be demonstrated that permission has been obtained from the persons who appear recognizable on the screen.”
The order grants Hammy Media three weeks to “effect remoderation or remove the videos” at issue. The judge adds that “Hammy Media can only forfeit a penalty payment 24 hours after it has been summoned by EOKM to cease publication.”
“The preliminary relief judge deduces from this that it is in the first instance up to EOKM to inform Hammy Media which films fall under the operative part of this judgment,” the order continues. “Hammy Media must then be given a period within which it can either voluntarily remove the video, or demonstrate to EOKM that it has the required permission or can demonstrate that the person in question does not live in the Netherlands and/or that the video in question not made public in the Netherlands.”
The court grants Hammy Media “a little more time” to respond to such notification from EOKM, writing that “a period of three working days (72 hours), counting from the notification of EOKM to Hammy Media, is hereby deemed reasonable.”
“Only if Hammy Media does not remove it within three working days, or cannot show the required information about permission, place of residence and place of publication, will it forfeit a penalty,” Dudok van Heel adds.
The court also ordered Hammy Media to pay to EOKM the cost of the proceedings as “the largely unsuccessful party.” The costs to this point are relatively small in the context of litigation: a court fee of €676.00, the cost of the summons (€127.88) and the EOKM “lawyer’s salary” of €1,079.00, for a total of €1,882.88.
Those costs will climb if Hammy fails to comply with the court’s order, going forward. The order “determines that Hammy Media will forfeit a penalty of € 10,000.00 per video after three weeks after service of this judgment and three working days after EOKM has notified it in writing of a video that, according to EOKM, falls under the prohibition given in 5.1 of this judgment, to be increased by € 500.00 per day that the video is still made public, always with a maximum of € 30,000.00 per video, unless Hammy Media has removed the video within that period of three working days or within that period of three working days can show the required data on consent, place of residence and place of disclosure.”