In our previous update, which can be found here, on the French bill “for a Digital Republic” (“Digital Bill”), we discussed the vague notion of platforms.
Here is what you should know about the obligations which are likely to be imposed on platforms.
First of all, the Digital Bill only provides a duty of loyalty and transparency of operators of online platform towards consumers.
The Digital Bill proposes to impose on all operators of online platforms a general duty to deliver “loyal, clear and transparent information on the general terms and conditions of use of the intermediation service it is offering and on the methods of referencing, classification and dereferencing of the contents, goods and services to which this service provides access“.
Following the numerous criticisms against the previous version of the Bill, the National Assembly added a duty to “clearly show, through explicit labeling the existence of:
a) “any contractual relationship, if the underlying contract contains provisions relating to the classification of contents, goods or services offered by the legal person which is referenced;
b) any capitalistic link, if it influences the classification of contents, goods or services offered by the legal person which is referenced;
c) any direct remuneration by the legal persons which are referenced and, if applicable, the impact of such remuneration on the classification of contents, goods or services offered.
The details of the corresponding information to be provided to the consumer take the form of a generic and intelligible description in the general conditions of use of the online platform”
The main difference with the previous version of the Bill is that contractual relationships, capitalistic links and direct remuneration should be mentioned only if they impact the referencing or classification of the goods, services or contents.
The reference to an “explicit labeling” was suggested by the Rapporteur of the law commission during the debates to enable consumers to easily see, at a glance, whether the contents, goods or services are referenced because of a contractual relationship, a capitalistic link or a direct remuneration. It is unclear at this stage what types of labeling would satisfy this requirement.
As for the “generic and intelligible description” relating to contractual relationships, capitalistic links or direct remuneration to be given to consumers by the operators of online platforms in the general conditions of use, the Rapporteur mentioned during the debates that an implementing decree should be adopted. This decree should detail the types of information to be provided and make sure that operators of online platforms are not bound to reveal trade secrets.
Self-regulation of operators of online platforms
The Digital Bill imposes self-regulation mechanisms on online platform operators exceeding a threshold of internet connections yet to be determined. They should notably elaborate and broadcast good practices to reinforce the obligation of loyalty.
In addition to this first obligation, the National Assembly created new obligations for operators of online platforms through which illicit content is likely to be broadcasted to French consumers, on a large scale. These platforms should notably implement technical devices allowing an automatic recognition of illicit contents. They should as well designate a legal representative in France and elaborate good practices to fight such illicit contents being made available on their platforms.
This Article is likely to cover a very wide range of websites notably because “illicit contents” and “on a large scale” are not defined.
In our next updates, we’ll report on the provisions relating to data portability and on the discussions before the French Senate.