“If it’s posted on the website it may or may not be genuine”. A dilemma!

March 23rd 2018

On October 6, 2017, the DGGCRF published an inquiry concerning “Bogus opinions by consumers on digital platforms”, conducted in 2016 and according to which “35 % of the 60 companies investigated were not in compliance”.

Accordingly, “the investigators acknowledged that certain professionals impersonated consumers with the intent of unlawfully enhancing their company” whilst:

  •  74 % of web users had already decided not to purchase a product due to the negative comments or opinions and
  • 41 % had already made a spontaneous purchase following a positive opinion[1].

The law called “Digital Republic” (see our article) had, in particular, introduced an enhanced obligation of information with regard to the different economic players on the Internet.

Yet, in the absence of the application decree, these texts were based on good will.

With the publication of three new decrees on September 29, 2017[2], two types of distinct obligations were formalized, one arising from the status of on-line platform operator (I) and the second resulting from the principal or ancillary activity of the collection, moderation or posting of an on-line opinion (II).

The concerned professionals have a delay until January 1, 2018 to comply with these obligations.

The administrative fine in the event of non-compliance may rise to 75,000 euros for an individual and 375,000 euros for a legal entity.

I. On-line platform operators

As from January 1, 2018, pursuant to Article L.111-7 of the French Consumer Code, an on-line platform operator is any individual or legal entity proposing, professionally, whether or not remunerated, a communication service to the public on-line based on:

1° The classification or referencing, via computer algorithms, of content, products or services proposed or posted on-line by third parties;

2° Or the connection of several parties with a view to selling a product, the provision of a service or the exchange or sharing of content, a product or service.

In this regard, a presumption has been established according to which any person who uses the terms “comparator” or “comparison” for his on-line commercial activity, must be considered as an on-line platform operator.

Consequently, the outcome reserved for the mention “by computer algorithms” still appears to be uncertain. Is it a pre-requisite or not to be defined as an on-line platform operator?

In the same vein, Article L.111-6 of the French Consumer Code exclusively referring to on-line comparators (without specifying whether computer algorithms are used) has been abrogated.

In any case, any on-line platform operator is obliged to provide the consumer with loyal, accurate and transparent information concerning:

1° The general conditions of use of the intermediation service that it offers and the terms of referencing, classification and dereferencing of contents, products or services accessible through this service;

2° The existence of a contractual relation, if it benefits from equity or remuneration, insofar as they have an impact upon the referencing of contents, products or services proposed or posted on line;

3° The advertiser’s quality (professional or not) and the parties’ rights and obligations from a civil and tax standpoint, when consumers are connected to professionals or non-professionals.

The content and the form of this information are specified in Articles D.111-6 to D.111-14 of the French Consumer Code.

Furthermore, as from January 1, 2019 (i.e., one year later), the on-line platform operators, whose activity exceeds a connection threshold of five million of visitors per month, per platform, calculated on the basis of the last calendar year must establish and post best practices to consumers in order to enhance the obligations of accuracy, transparency and loyalty.

There is no doubt that, in the meantime, the government will have specified the means by which these “best practices” may be delivered and that the latter shall draw from those recently imposed on intermediation platforms (see our article on this issue).

For all practical purposes, it must be recalled that the on-line platform operators must also send to the tax administration a declaration mentioning certain information listed in Article 1649 quater A bis of the French General Tax Code for each of their users allegedly liable to be subject to tax in France.

II. The on-line opinion editors

As from January 1, 2018, pursuant to Article L.111-7-2 of the French Consumer Code  any individual or legal entity whose principal or ancillary activity involves collecting, moderating or posting on-line opinions from consumers is obliged to provide the users with loyal, accurate and transparent information concerning the terms of publication and the processing of opinions posted on-line.

This person must also:

  • specify if these opinions are subject to verification, and if so, the principal characteristics of such verification must be mentioned;
  • indicate the date of the opinions and any updates;
  • indicate the reasons of refusal to the consumers whose on-line opinions have not been posted;
  • set up a free functionality that enables those responsible for the products or services subject to an on-line opinion to flag a doubt on the genuine nature of this opinion, upon condition that such flagging is justified.

The content and form of these obligations are specified in Articles D.111-7 to D.111-19 of the French Consumer Code.

For the enforcement of these obligations,

An on-line opinion is understood as the expression of a consumer’s opinion on his consumer experience by any element of appraisal, whether in terms of quality or quantity.

The consumer experience is established whether or not the consumer has purchased the product or service for which he has posted an opinion.

The following shall not be considered as on-line opinion within the meaning of Article L. 111-7-2: user sponsorship, the users’ recommendations of on-line opinions and expert appraisals”.

Whilst the definition provided by the government is easy to understand even although it is an umbrella definition, the exceptions are less easy to determine, in particular concerning “the users’ recommendations of on-line opinions” or “expert appraisals”, insofar as these “experts” are not designated and/or defined.

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Mounir Majhoubi, Secretary of State with the Prime Minister in charge of digital affairs, mentioned that these decrees of September 2017 “exemplify the French government’s intent to setup a better regulation for platforms”.[1]

All of this suggests that the obligations imposed on Website editors shall accentuate and evidently move in the direction of an enhanced control of the content posted on-line.

The next stage already appears to have started at the European level and numerous professionals are concerned of the outcome awaiting not only the Website editors but the technical intermediates for whom similar control requirements are in the pipeline (refer to the press release by France Digital, the Association of EC Web Services (ASIC), Syntec Numérique (Digital Collective Bargaining Agreement) and Tech In France)

Jérôme Sujkowski 

[1] Orelsan - "Basique" - Album "La fête est finie" – 2017.
[2] Annual barometer 2014 of C to C PriceMinister-Rakuten & La Poste.
[3] Decree no. 2017-1434 of September 29, 2017 relating to the obligation of information for digital platform operators.
Decree no. 2017-1435 of September 29, 2017 relating to the fixation of a threshold for the connections based on which the on-line platform operators setup and post best practices to enhance the loyalty, accuracy and transparency of the information provided to consumers.
Decree no. 2017-1436 of September 29, 2017 relating to the obligation of information relating to consumers’ on-line opinions.
[4] Press release of October 5, 2017