on November 3, 2016
France’s newly published Law for a Digital
Republic includes key provisions that aim to foster more consumer and user
trust in the digital ecosystem by requiring enhanced transparency and fairness
obligations for online platforms and heightened confidentiality of private
electronic correspondence. These provisions will be fully effective upon
the adoption of implementing decrees, which are expected within the coming
months.
New definition of “online platform operators”;
enhanced transparency and fairness obligations vis-à-vis consumers
The Law for a Digital Republic introduces in the
French Consumer Code a new definition of online platform operators: any
individual or legal entity offering, on a professional basis, whether for free
or for consideration, an online public communication service consisting of
either (i) ranking or referencing content, goods or services offered or
uploaded by third parties, by using computerized algorithms (e.g., online price comparison tools); or (ii)
bringing together several parties (intermediation) for the sale of a good, the
provision of a service or the exchange or sharing of content, a good or a
service (i.e., marketplaces).
Under the Law, online platform operators are
required to provide fair, clear and transparent information regarding (i) the
general terms of use of any intermediation service; (ii) the referencing,
ranking and dereferencing criteria for content, goods and services offered or
uploaded; (iii) the existence of any contractual relationship, capitalistic
relation or direct remuneration for the operator’s benefit that influences the
classification or referencing of the content, goods or services offered or
uploaded; (iv) any person acting as an advertiser; and (v) the rights and
obligations of each party under civil and tax laws when consumers are put in
contact with professionals or non-professionals. Implementing decrees are
expected by March 2017 to specify these obligations.
In addition, online platform operators whose
activity generates connections above a certain threshold (to be defined by
implementing decree by March 2017) must establish and make available to
consumers good practices guidelines aimed at strengthening the obligations of
clarity, transparency and fairness mentioned above.
Marketplaces will be required to provide
professionals with a space that allows them to comply with their own
information obligations vis-à-vis consumers. The implementing decree
specifying requirements for this space is expected in March 2017.
The regulator is empowered to conduct audits of
platform operators’ business practices. The regulator will publish the results
of these evaluations and a list of platform operators that do not comply with
the information obligations.
Finally, websites that collect, moderate or
disseminate consumer reviews or opinions will be required to provide a host of
new information in a fair, clear and transparent manner regarding the
conditions for publishing and processing these reviews or opinions. Here again,
an implementing decree will specify the requirements for providing this
information.
New consent requirement to ensure confidentiality of
electronic correspondence
The Law introduces into the Postal and
Electronic Communications Code a definition of online public communication
service providers as any person making available content, services or
applications that constitutes online communication to the public.
Telecom operators and online public
communication service providers are required to maintain the confidentiality of
user correspondence, including the content of the message, the correspondents’
identity and, where applicable, the subject line and attachments. The automatic
analysis of such correspondence for advertising, statistical or service
improvement purposes is prohibited, except with the user’s express, specific
and time-limited consent. The period of validity of such consent (which cannot
be longer than one year) will be specified by an implementing decree expected
by the end of 2016.
However, electronic correspondence can still be
automatically analyzed without users’ express, specific and time-limited
consent whenever the analysis is for purposes of displaying, sorting or
dispatching messages, or detecting unsolicited content or computer malware.
Telecom operators and online public
communication service providers will be required to inform their employees of
the new confidentiality obligations.
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