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.
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.
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.
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.
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.