Dutch Org EOKM Takes XHamster to Court

AMSTERDAM – Alleging that the site “exploits nude images without demonstrable consent of the people in the image”, the Dutch Online Child Abuse Expertise Office (in Dutch, the “Expertisebureau Online Kindermisbruik” or “EOKM”) has initiated a lawsuit against Hammy Media, the operators of xHamster.com.

A representative for xHamster told YNOT the company is “unable to provide any comment before the verdict has been announced.”

With the lawsuit, the EOKM said it “wants to make it clear that all operators of porn sites must check whether everyone in the picture has permission to put nude images on the internet.”

“The EOKM has already observed for some time that some porn sites publish so-called amateur images without the explicit consent of the people in the image,” the organization stated in a press release published earlier this week.

“We then receive requests to help remove the material, which is not always easy,” said Arda Gerkens, director of the EOKM.

Hanna van Til, an attorney from the Dutch firm Boekx Advocaten representing EOKM in the lawsuit against xHamster, said it is “clear from a legal point of view that offering these types of images online is not allowed,” referring to images for which there is no explicit consent offered by those depicted.

“In an earlier lawsuit initiated by the EOKM, the Amsterdam District Court ruled that it is unlawful to publish this type of images, unless the operator has ascertained that everyone in the image consents to publication,” van Til added. “Now it is high time that operators also adhere to this.”

According to a summons published in the Dutch Central Register for Collective Claims and linked to from an EOKM press release, a hearing in the matter is set for Monday, March 27, before the Amsterdam District Court. The summons also lays out EOKM’s case against Hammy Media.

In 2020, EOKM brought a similar action against the site vagina.nl, ultimately securing an order from the court holding that adult websites may “only publish nude images with the express permission of those depicted,” as EOKM summarized the ruling.

Referencing the vagina.nl ruling, the summons directed at Hammy Media notes that “the District Court of Amsterdam ruled that the operator of a porn website is acting unlawfully if he publishes images that: i. have been secretly filmed and that show recognizable persons who can be seen (in whole or in part) undressed in places where they feel unobserved; and ii. is not professionally made and identifies persons who perform sexual acts in private, unless the operator has satisfied himself that the persons on screen consent to the disclosure of those images.”

The summons maintains that “the porn website operated by Hammy Media does contain images as described above.”

“There are many videos with sexually tinged footage that were clearly not made by professional porn actors, and of which it is likely that the people involved did not give permission for publication,” the summons states. “With regard to this footage, Hammy Media has apparently not satisfied itself that the persons on screen have consented to disclosure.”

The summons also references a statement to which xHmaster uploaders must agree, which states: “You have the written consent, release, and/or permission of each and every identifiable person in Your submission to use the name or likeness of each individual for use in Your submissions in the manner contemplated by these Terms and Conditions and you are also authorized to provide their ID documents for coperformer verification as required by the Creators’ Program Agreement.”

EOKM asserts that this disclaimer “means that on paper it is well arranged that the Website will only contain visual material of which the persons in the picture agree to publication. However, the practice is very different. The people who are in the picture have not always given written permission for the publication of the visual material. Hammy Media apparently does not verify this before making the footage public.”

In response to EOKM’s claims, according to the summons, Hammy Media “explained its working method” including stating that the company “checks all footage before it is posted online and has a zero-tolerance policy when it comes to illegal material.”

The summons then quotes Hammy Media as stating “‘Please be kindly advised, that our company has a zero-tolerance policy for the publishing of any kind of illegal content and, thus, all content that our verified members request to be published is strictly moderated prior to its publication. Per our ‘Terms & Conditions / User Agreement’…. we reserve the right to delete any content violating our Terms & Conditions including videos, pictures, messages, posts, or profiles that are deemed, in our sole discretion, to be illegal, immoral, or offensive.”

“Hammy Media therefore checks – in its own words even strictly (‘strictly)’ – all the footage before it is posted online,” EOKM states in the summons.

The summons specifies that the complaint against Hammy Media “concerns videos that were clearly not made by professional actors and actresses.”

“It is in no way clear from the images that the persons in the picture give permission for publication,” the summons states. “On the contrary: the images seem to be intended for private use and not for online publication. It is unlawful to publish this visual material on the Website, unless Hammy Media has actually satisfied itself that the persons on screen have consented to the publication of this visual material. That is obviously not the case.”

The assertion that the videos at issue are “clearly not made by professional actors and actresses” is an important component of the complaint, given the contours of the Amsterdam District Court’s decision in the vagina.nl case.

According to a report from Dutch news site RTL News published at the time the vagina.nl decision was issued, that case involved “nude images that have been secretly filmed, such as in dressing rooms or fitting rooms, or that have been made in private.”

“The company from Leeuwarden that operates the site must remove the videos published without permission within eight weeks, otherwise it must pay a penalty of 10,000 euros,” RTL reported. “The penalty can be up to 30,000 euros. The ban does not apply to obviously professional images.”

In the lawsuit targeting Hammy Media, EOKM is asking the Amsterdam District Court to prohibit xHamster from “photographing footage that has been secretly filmed and that shows recognizable persons who can be seen (wholly or partially) undressed in places where they feel unobserved; or… has not been professionally made and shows recognizable persons who perform, publish and/or distribute sexual acts in the private sphere.” EOKM requests that this injunction be “worldwide insofar as it concerns persons residing in the Netherlands; and… in the Netherlands insofar as persons who are not resident in the Netherlands are concerned; unless defendant can prove that all persons in the picture have consented to the disclosure of that footage.”

EOKM also requests that the court “order that the defendant should owe a directly due penalty payment to the plaintiff of €10,000 for each time that the defendant xhamster.com publishes a video containing such footage online on the website and/or on a subdomain, including but not limited to nl.xhamster.com, in violation of the prohibition referred to in point I,  to be increased by an amount of €500 per day for each day or part thereof that the video in question is still made public longer than twenty-four hours after the defendant has been ordered by the plaintiff to stop the disclosure, each time with a maximum of €30,000 per video.” The organization is also seeking to have Hammy Media pay for the cost of the legal proceedings, “plus additional costs.”

In the organization’s 2021 annual report, EOKM touted its prior courtroom victory over vagina.nl as a “ground-breaking ruling.”

“We received excellent news about the court case that we brought against vagina.nl together with the Stop Online Shaming (SOS) foundation: The Amsterdam district court has ruled that porn websites may only publish nude images with the express permission of those depicted,” EOKM wrote. “Only images that are clearly professionally made are excluded from this prohibition. This is a resounding victory for the rights of victims whose nude images have been published without their consent. This ruling is not just a major set-back for the porn site concerned: it has an impact on all websites that commercially exploit sexual images.”

Otto Volgenant, an attorney who represented EOKM and SOS in the vagina.nl case, said that due to the ruling “the online porn industry will have to clean up drastically.”

“The importance of this ruling is that justice is done to the victims for the first time,” Volgenant said. “This has never happened worldwide before.”