French Cour de Cassation - Commercial division, December 4, 2012, n°11-27.729

The French Cour de Cassation confirms the sanction imposed on an internet site for an unfair and misleading commercial practices consisting in appearing to be an objective comparator site, while in fact indirectly promoting certain products.

Leguide.com, which runs a price comparator site listing e-merchandiser sites and offers, was summoned to appear before the courts by Pewterpassion.com, which specialises in the promotion of sales and internet sales on the grounds of unfair and misleading commercial practices. The petitioner claimed that the site was actually an advertising site and considered that the failure to inform the consumer of the promotional nature of the site constituted an unfair and misleading practice causing it a prejudice.

In its decision, the Cour de Cassation confirms the Paris Court of Appeal's decision dated September 28, 2011 and recognises that the site indirectly promoted certain products or services of e-merchandisers, which benefitted from a priority listing in exchange for remuneration.

As such and in accordance with the law on the trust in the digital economy (n° 2004-575 of June 21, 2004), Leguide.com should have clearly identified any advertising on its site. The necessity for the internet user to consult the words "find out more about results" or "merchandiser space" in order to be effectively informed of the promotional nature of certain offers, according to the Court, substantially altered the economic behaviour of the consumers guided in priority towards paying offers. The Court therefore considered that this practice was an unfair and misleading commercial practice within the meaning of articles L. 120-1 and L. 121-1 of the French consumer code.

The French Cour de Cassation confirms the injunction against Leguide.com obliging it to identify the advertising space on its site and orders it to pay €15.000 damages, for the loss resulting from the misappropriation of clientele.

We note here that the identification of the practice in itself seems to be sufficient for the Court to prove the potential alteration of the economic behaviour of the consumer, whereas in a recent case, the same chamber criticised the Court of Appeal for not having looked for the existence of this alteration (French Cour de Cassation, "Kelkoo" case dated November 29, 2011).

Such a position, if it were to be maintained, would render inefficient the argument of defendants on the necessity to prove a likely substantial alteration of the behaviour of the average consumer, which is nonetheless required by article L. 120-1 of the French consumer code.