France: the Unfair Terms Commission issues recommendations relating to social network service providers

fb_iconSocial networks are essentially governed by their own legal provisions enacted in their Terms of Use (TU). The TUs of social networks are strongly criticized and especially those of Facebook. They are often subject to unilateral changes and many of their terms seem unfair. Last December, the Unfair Terms Commission addressed the topic in its recommendation Nr 2014-02 of December 3, 2014 on contracts offered by social network service providers.

This commission, which reports to the Minister for Consumer Affairs, issues recommendations for the removal or modification of terms that are intended to or whose effect is to create a significant imbalance between the rights and obligations of the parties to the contract, at the expense of the non-professional or consumer party. These recommendations are increasingly used by the lower courts in disputes between consumers and professionals. In fact, some of the recommendations in relation to mobile phones contracts were adopted by the courts to find such contracts unfair. With regards to social networks, the Commission issued about forty recommendations, most of which concern the protection of privacy and personal data. The Commission recommends the removal from the proposed contracts of social network service providers of terms which intend to or whose effect is to:

  • With regards to the legibility of the contract: “to provide consumers or non-professional with contracts drafted in a language other than of the target population” or “to include too many cross-references among the various contracts offered to the consumer or the non-professional.”
  • With regards to the formation of the contract: “not to provide for the express consent of the legal representatives of dependent minors for the processing of personal data” or “to claim that the use of social networking services is free of charge.”
  • With regards to personal data: “to provide for an implied consent to the processing of personal data of consumers or non-professionals by the professional in violation of law Nr 78-17 of January 6, 1978 on information technology, data and freedoms” or “to provide for the transfer of personal data abroad without specifying the States of their destination and without requiring the express consent of the consumer or the non-professional when it is legally required, or by inferring this consent from adherence to the general terms of use of the service.”
  • With regards to intellectual property rights: “to confer a right of use to the service provider on the contents generated by the consumer or the non-professional when these are protected by copyright, without providing clear precisions as to the relevant contents, conferred rights and authorised uses” or “to confer a free right of use to the professional on the content generated by consumer user or non-professional user, without making a clear and apparent mention of it.”
  • With regards to the modification of TU: “to grant the professional the right unilaterally to modify the website or the terms of use in cases other than those provided for at article 132-2-1, IV and V of the Consumer Code.”

Among these non-exhaustive suggestions, we may also mention one which is concerned with the removal of the disclaimers. In this regard, the clause granting jurisdiction to the tribunals of Santa Clara county in California in the general terms of Facebook has been declared as unfair in an order by the court of first instance of Paris issued on March 5, 2015. As the clause is deemed null and void, the French Court can retain jurisdiction over the dispute opposing the social network to an Internet user whose account was deactivated following an online posting of Courbet’s painting “L’origine du monde.” Courts may thus rely on these recommendations in similar disputes, as was the case for mobile phones contracts. Right holders can only benefit from these provisions and this ruling which provide for a better defence of their rights in France.