An update to the terms of use of social media networks in France

media-998990_960_720By allowing a user access to a social media network, he or she accepts all the provisions outlined in the Terms of Use without actually being in a position to question any of these. It is therefore legitimate to question the binding force of these rules: what is the validity of these terms under French law?

What is the legal nature of the terms of use of social media networks ?

“Terms of use”, fundamentally, is a contractual document laying down the rules of the social media network. They are binding upon the social media network and the user and as such, article 1194 of the French Civil Code applies:: “Agreements bind not only as to what is therein expressed, but also as to all the consequences that equity, usage, or law impose upon the obligation according to its nature”.

However, the terms are first and foremost an adhesion contract in that the user is not in a position to actually negotiate the terms of the contract. Therefore, while the terms of social media networks are legally binding contracts, they are hard to access and contain legally questionable provisions: their binding force is therefore open to debate.

Are the terms of use of social media networks enforceable?

Terms of use are often criticized for being difficult to access. The terms are often reproduced on documents separate from the contract and it is not always easy to prove that the contracting party was aware and accepted them.

For some terms, relating to the protection of personal data, access is even more tenuous since the user needs to click on a link within the terms in order to review the relevant rules or policies.

Furthermore, the terms of social media networks are regularly changed and users are not explicitly informed of modifications.

Are the terms of use of social media networks lawful ?

Social media networks are aware of content posted by a user and the terms implement licences allowing them to use that content. A judgment of the Paris Court of first instance (“Tribunal de Grande Instance de Paris”) on May 29, 2012, TF1 vs. YouTube, was an opportunity for judges to indicate that the license agreement in YouTube’s Terms of Use was questionable under copyright law, since it failed to set out limits in terms of time and space to the free transfer of rights.

Can some clauses of the terms of social media networks be regarded as unfair under French law?

The clauses, as presented, cause a significant imbalance between the rights and obligations of the parties. The general public and consumer rights groups therefore tend to condemn these clauses, which they define as unfair.

The majority of the clauses in question deal with the protection of privacy and personal data. The Unfair Terms Commission, in its recommendation No. 2014-02 of November 7, 2014 recommends the removal of terms relating to the legibility of the contract, the formation of the contract, personal data, intellectual property rights or the modification of the terms as these create a significant imbalance between the rights and obligations of the parties to the contract.

Until recently, it was not possible in France to file a class action. The Hamon Act of March 17, 2014, introduced the class action in the Consumer Code, thus enabling consumer associations to take legal action to obtain compensation for individual harm where a social media network [sic] has failed to comply with its legal or contractual obligations.

Social media network terms of use and conflicts of jurisdiction

The terms of use of social media networks are now being construed in conjunction with rules regarding conflict of law and jurisdiction. In 2012, the Pau Court of Appeal clarified the applicability of terls in the framework of an action brought against Facebook. A Facebook user objected to a clause of the terms of use conferring jurisdiction to the California courts. The judges rejected the application, ruling that the clause was written in English and the font was too small [sic]. This judgment confirms that the parties to a contract can decide on the competent jurisdiction.

In a more recent decision of March 5, 2015, judges of the Paris Court of first instance (“Tribunal de Grande Instance de Paris”) considered that they had jurisdiction over the validity of the jurisdiction clause contained in the Facebook terms of use. The Court then declared the jurisdiction clause invalid and unenforceable on the grounds of the unfair nature of the clause. The Court of appeal, in its judgment of February 12, 2016, upheld the decision. Consequently, the Paris Court of first instance has jurisdiction over the dispute between the social media network and a Facebook user whose account had been disabled (after posting a photo of a famous painting by Courbet called “L’origine du monde“.)

The question of the scope of application of the solution arises following the publication of the Ordinance No. 2016-131 of February 10, 2016 reforming the French Civil Code. Article 1171 of the Civil Code, which will come into effect on October 1, 2016, states that “in an adhesion contract, any clause which generates a significant imbalance between the rights and obligations of the parties is deemed to be void.” Professionals will therefore be able to invoke this article which gives them a wider scope of defense and places them on the same level as non-professionals and consumers who are protected against unfair terms according to the Article L212-1 of the French Consumer Code.

The DGCCRF (French Consumer Authority) has also looked at the case of Facebook. In a statement on February 9, 2016, the Authority declared having examined the Facebook terms of use and having found several clauses to be abusive: in particular, the clause authorising Facebook to remove, at its own discretion, content or information published on the network by a user and the clause in which Facebook reserves the right to unilaterally change the privacy policy without informing the user. The DGCCRF has publicly urged Facebook to remove these clauses which are considered unfair.

On January 26th, 2016, Facebook was served a formal notice by the CNIL (French Data Protection Authority) asking the company respect the Data Protection Act of January 6, 1978 in the area of collection and use of data. The social media network was accused of monitoring the navigation of users on other websites without their knowledge, even if such users are not in possession of a Facebook account. Since then, no information has been published neither by the CNIL nor by Facebook on the consequences of this notice. It is definitely a case to watch closely.

One can only congratulate French judges for having stood up to social media network providers and ensuring they respect the fundamental values of French law.