The French Unfair Terms Commission (“UTC”), operating under the authority of the Minister for Consumer Affairs, regularly issues non-binding opinions and recommendations. Recommendation n°2014-02 on contracts proposed by social media network service providers, published on 3 December 2014, may have a broader impact than explicitly announced and could help define unfair terms and practices relating to contracts via the Internet and to e-commerce more generally.
The UTC’s recommendations are considered soft law and are issued only as guidance. However, one should not underestimate their impact as they are likely to be used as an implicit basis by the courts when assessing unfair terms at trial.
When assessing unfair terms, the courts are guided by Article R.121-1 of the French Consumer Code, which provides a list of presumed unfair terms (so-called “gray” terms). In addition, terms that are intended to or whose effect is to create a significant imbalance between the rights and obligations of parties to the contract, to the disadvantage of the non-professional or consumer, qualify as unfair terms. Such terms, known as “black” terms, are systematically sanctioned by the courts. The sanction in question, pursuant to Article L.132-1 of French Consumer Code, is to consider the terms null and void (“le reputé non écrit”). The unfair term is treated as having never existed. The contract containing the unfair term, however, remains in effect, regardless of whether the expectations of the professional co-contractor may be frustrated in the absence of the “deleted” term.
A recent UTC Recommendation on contracts proposed by social media network service providers, (UTC Recommendation n°2014-02 of 3 December 2014, “Recommendation”) concerns social media network service providers as noted in its title. Most of the legal commentaries have focused on the social media aspects of the Recommendation. However, despite references to certain specific rules, the Recommendation is in fact mainly based on general statutes and regulations. From that perspective, there is no obstacle, in principle, to extending the scope of the Recommendation to all professionals offering services or goods to non-professionals over the Internet.
The 46 distinct recommendations issued by the UTC draw mainly from existing statutes and regulations applying to consumer contracts concluded over the Internet.1
This is the case, for example, of recommendations regarding exculpatory clauses or terms limiting the 14-day withdrawal period afforded to consumers in distance or on-line sale contracts.
The Recommendation, however, also pinpoints certain terms and practices whose unfairness was neither obvious nor directly based on applicable statutes or regulations.
Four recommendations are of particular interest for on-line sales via Internet websites due to their innovative character:
- Contractual documents must be readable both on screen and once printed out. The UTC goes into the technicality of the matter and criticizes general terms and conditions that are “not easily readable on the screen or on the paper after printing […] due to the graphics of the [website] interface”;
- Cross-referencing within one or several distinct contractual documents is acceptable provided it is not excessive. For Instance this recommendation comes up against the practice of separating customary contract terms from privacy policies, which are also contractual terms, but often expressed in a different form;
- The contractual nature of documents referred to for instance as “charter” or “policy” must be specified;
- Merely browsing through a website cannot be construed as an implicit and immediate acceptance by the non-professional of the general terms and conditions of use of the website. Consumers must be given the opportunity to read such terms and conditions before accepting them. Any contrary term would qualify as an unfair term.
Those recommendations, by the generality of their terms, appear largely to spill over the scope of social media network service providers and may be relayed by case-law, statute or regulation in the context of all other contracts concluded on-line with non-professionals.