Q&A: online advertising in France

Advertising

What rules govern online advertising?

Online advertising is regulated by various rules of civil, consumer and commercial laws that prescribe, notably, (1) identification of the advertiser and of the advertising nature of the communication, and (2) transparency of the purchase price paid by the advertiser for an advertising space. Online advertising involving personal data is subject to the General Data Protection Regulation (GDPR) and the National Commission for Information Technology and Civil Liberties (CNIL) guidelines. The metaverse is subject to the above-mentioned rules.

There are specific advertising restrictions, such as the prohibition of surreptitious advertising and subliminal techniques, notably by video-sharing platforms. The recommendations of the professional advertising regulatory authority (ARPP) and, in particular, the Recommendation on Digital Advertising Communication, are usually followed.

What rules govern targeted advertising and online behavioural advertising? Are any particular notices or consents required?

Targeted advertising and online behavioural advertising are regulated by the general principles set out by the GDPR and by Law No. 78-17, as well as by the CNIL guidelines, sectoral regulations and the provisions of the new Digital Services Act focusing on children, sensitive data and ‘dark patterns’.

Cookies, including those used for targeted advertising, are subject to prior clear and concise information and express consent for the use of each type of non-technically essential cookies. The CNIL recommends a brief presentation of the purposes of each type of cookies to be approved or denied and an upfront choice to accept or reject cookies upon reaching the website.

Some practices of ‘influencers’ on popular video platforms (TikTok, Instagram, etc) amount to concealed advertising and are sanctioned by the Directorate-General for Competition, Consumer Affairs and Fraud Control (DGCCRF).

Are there rules against misleading online advertising?

Under the French Consumer Code, unfair (deceptive or aggressive) commercial practices, offline and online, are prohibited – namely, any practice that does not meet professional diligence standards and alters, or is likely to materially alter, consumers’ economic behaviour. Advertisers must be able to substantiate objectively verified and verifiable advertising content. French law does not specify what constitutes a suitable basis for a claim, hence the professional must provide all useful supporting information, for example scientific studies. An online advertisement must be clearly identified as such and indicate the individual or entity on whose behalf it has been published.

Are there any digital products or services that may not be advertised online?

The French Evin law totally prohibits tobacco advertising and subjects advertisements for alcoholic beverages to a highly restrictive regime, offline and online. Notably, online alcohol advertising must be neither intrusive nor interstitial, it may not target young people nor originate from sport-related organisations. The Monetary and Financial Code also prohibits direct or indirect electronic advertising of some speculative trading services.

Other products and services deemed dangerous (ie, firearms, medical devices, gambling, etc) are subject to specific sectoral restrictions on online and offline advertising.

What is the liability of content providers and parties that merely host the content, such as ISPs? Can any other parties be liable?

Webhosters, who are distinct from ISPs, cannot be held liable for hosted content on behalf of a content provider if (1) they do not have actual knowledge of their unlawfulness or of circumstances indicating such unlawfulness, or (2) from the moment they become aware of such unlawfulness, they act promptly to remove the content or to prevent its accessibility.