After a broad public consultation, the French government has introduced into Parliament a proposed law that would constrain the activities of digital service providers. As discussed below, the proposal contains several controversial elements.
Data portability. The most controversial part of the proposal would require online service providers to transfer user data to other competing service providers if the user so requests. The French proposal on data portability goes beyond the provisions of the European General Data Protection Regulation (GDPR). The GDPR would require portability only of personal data provided by the user himself. The French proposal would require that service providers allow portability not only of data provided by each user, but all “associated data” relating to his or her use of the service. This provision has sparked criticism because it would potentially obligate service providers to grant access to confidential and proprietary information that the service provider has developed based on user behavior. The provision is so broad it could apply to any form of online service, including online retailing and banking.
Email scanning. The French proposal would also outlaw email services that analyze the content of emails in order to provide targeted advertising. The provision is so broadly drafted that it would also prevent corporations from analyzing employee emails in order to detect fraud or other violations of corporate policy. Any scanning of email would be illegal unless it is done to prevent cyber attacks. Consent would not be a justification.
Transparency and fairness. In addition, the proposal would impose new transparency and fairness obligations for digital platforms. The proposal’s definition of digital platform includes any service that references content provided by third parties, or any service that puts two or more parties into contact with each other in order to complete a transaction. The scope of businesses covered by this new definition is potentially vast, including real estate agents, directory services, and stockbrokers.
The new transparency obligations would require that any platform disclose contractual or ownership links with any service provider referenced by the platform. This could lead to absurd results, including the obligation for real estate agents to disclose that they have a sales mandate for every listing included in the real estate agent’s website. Similarly, an app store would have to disclose that the app store has a contract with every application publisher listed on the app store. The ownership link would have to be disclosed no matter the level of ownership. The purpose of this disclosure is to make sure consumers that know if certain references featured on platforms result from commercial arrangements instead of objective criteria. However, the provision seems overbroad by imposing broad disclosure requirements on all platforms regardless of whether the underlying contracts or ownership interests in fact have any influence on how content is ranked on the platform.
Another controversial provision requires that platforms develop and publish KPI’s relating to their level of fairness and transparency. This aspect has drawn questions since fairness and transparency are qualitative concepts that cannot easily be measured and transformed into KPI’s.
Finally, the very idea of creating a specific set of rules for digital platforms is controversial, since there is no consensus on how to define a platform, nor on the need for special regulation in addition to existing competition, consumer protection and data protection law. The definition in the proposed French law is quite different from the definition contained in the European Commission’s recent consultation on digital platforms. The European Commission is conducting a fact finding exercise to determine whether specific regulation of platforms is really required, or whether existing laws are sufficient to deal with potential abuses. To our knowledge, French lawmakers have not conducted any similar fact-finding exercise.