Crossing the T&Cs

French courts have wrestled with the legality of social media terms and conditions and have not shied away from challenging them, says Nathalie Dreyfus of Dreyfus

No user of the internet can avoid being bound by the general terms and conditions of social media. These conditions determine the rules of interaction between the provider and user of a service. As to social media, these provisions will provide for IP rights, the use of personal data, and the content created by users, among others.

By allowing access to the social media network, the user accepts all of the provisions of the general terms and conditions of use, without being able to negotiate them effectively.

Questions must be asked of the binding force of these rules. What about their validity under French law?

The judicial nature of social media terms and conditions

Terms and conditions are, first of all, a contract determining the rules of the game on the social media network. It forms the law of the parties on the platform, and in France, Article 1134 of the French Civil Code applies: “Agreements legally entered into operate as law for those who made them.”

The particular formal requirements of this type of contract, namely the fact that the terms and conditions are agreed upon online, does not challenge their validity. It is an online contract.

Finally, the terms and conditions are pre-formulated standard contracts in the sense that, in practice, they do not allow the user to negotiate the terms of the contract.

Therefore, the terms and conditions of social media are binding contracts. However, in practice, the questionable accessibility and lawfulness of the clauses in the terms and conditions of social media can raise issues about their binding force.

The reliability of terms and conditions

Terms and conditions are often criticised for being hard to understand. Indeed, in practice these conditions are often reproduced in documents other than the contract and it is not always easy to prove that the contracting party knew of and accepted them. The terms and conditions are deemed to be acknowledged and accepted only if a clause in the contract makes reference to them.

For certain conditions pertaining to the protection of personal data, the accessibility is even more tenuous because the policies or confidentiality requirements can be opened only by clicking on a link in the terms and conditions.

Hence, this system of clauses can be compared to a Russian doll: the opening of one condition leads to another, and so on.
Furthermore, the terms and conditions of social media are modified on a regular basis, but that does not necessarily mean that the users are expressly informed about these modifications.

Some social media say they will only bring modifications that they deem to be ‘substantial’ to the attention of users. Hence, the lack of access to the content of terms and conditions and the lack of transparency concerning their modification seem to breach the protective provisions of French consumer law.

The lawfulness of social media terms and conditions

This is an issue when it comes to the usage licence of intellectual property rights as well as to clauses pertaining to personal data.

Social media are not unaware of the contents posted by the user and terms and conditions secure a licence for the use of this content. The issue is on the validity, under French law, of these clauses that secure the licences for the use of this content.

A May 2012 judgement of the first instance court given in TFI v YouTube indicated that the licence found in the terms and conditions of YouTube is questionable under copyright law because the temporal and spatial limits of the free transfer are not specified.

In addition, with regards to the formal requirements and compulsory indications imposed by Article L 131-3 of the French Intellectual Property Code, the shortcomings in the identification of the rights that are the subject of the licence, or even of the comprehensive licences for future works, are questionable under copyright law yet nonetheless feature in the licences for the use of social media.

It therefore seems that the licences for the use of content are not in line with the statutory requirements of French law.

When it comes to personal data, terms and conditions are criticised for their lack of transparency on the use of personal data and its appropriation by social media.

Some clauses, including those that provide for the conservation of personal data of the user for an indeterminate period, or for a period exceeding the time required to process the operation, are deemed to be abusive.

The potential abusiveness of T&C clauses under French law

The clauses that are presented here create a significant imbalance between the rights and obligations of the parties. Hence, public and consumer associations regularly target these clauses that they term as ‘abusive’.

The commission in charge of dealing with abusive clauses, through an order issued in November 2014, recommended eliminating the various clauses that are found in social media terms and conditions.

This commission, which falls under the remit of the minister responsible for consumers, issues recommendations to eliminate or modify clauses that have, as their purpose or effect, the creation of a significant imbalance between the rights and obligations of the parties to the contract that is detrimental to the amateur or consumer.

The majority of these clauses are about the protection of privacy and personal data.

The commission recommends that clauses, having as object or effect, the clarity of the contract, the formation of the contract, intellectual property rights or even the modification of the terms and conditions, be removed from the contracts proposed by the providers of the social media.

The recommendations of the commission only serve as guidance. However, their impact should not be underestimated because they can be an implicit basis for the courts when they assess the abusive nature of a clause in a legal dispute.

In practice, until very recently, it was not possible to file class actions in France. The Hamon Law of March 2014, which introduced class actions for the first time in the Consumer Code, will undeniably give consumer associations the right to seek compensation for consumers who have, as common ground, social media that have breached their legal or contractual obligations.

The position of social media terms and conditions when it comes to conflicts of jurisdiction

The rules applicable to legal and jurisdictional disputes are in conflict with the terms and conditions of social media and are currently attracting the attention of French case law and authors.

In 2012, the Court of Appeal of Pau explained the scope of application of the terms and conditions in relation to an action against Facebook.

A user was contesting a clause in the terms and conditions that confers jurisdiction to courts in California.

The judges had ignored the application of Facebook terms and conditions, taking into consideration that they were written in English and that the font style made the text too difficult to read.

Given that the conditions imposed by Article 48 of the French Code of Civil Procedure, which is ‘loi de police’ (a mandatory rule with which compliance is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to the extent that they are applicable to any situation falling within their scope), had not been respected, the internet user could not have consented to a full awareness of the facts, and so the clause conferring jurisdiction was null and void.

This case therefore confirms that the parties to a contract can choose which courts will have jurisdiction but the choice of the parties can sometimes be contrary to the provisions of ‘lois de police’ that must necessarily apply.

More recently, an order of the the High Court of Justice of Paris, issued at the outset of the trial, deemed the jurisdiction clause found in Facebook’s terms and conditions to be null and void after the judge found himself competent to decide on this plea in before commencement of the litigation, which concerned the abusive nature of the clause.

This reasoning differs from the one used three years earlier by the Court of Appeal of Pau.

Indeed, the court did not rely on the prohibition of the abusive clauses but relied on the fact that the jurisdiction clause is extremely hard to identify and unclear, especially since it was written in English at the time.

The debate here is on the concept of abusive clauses. This solution should bring reinforced legal protection not only to the users of Facebook, but also to those who use other online services for which general terms include similar stipulations.

Nevertheless, this solution applied does not solve all the practical difficulties faced by the users of social media who want to have their rights recognised before the French courts.

Indeed, in practice, many obstacles limit opportunities to go before a judge, such as the extreme dependence on social media users accepting the pre-formulated standard contracts of these platforms, or the low financial implications of these legal disputes, which are too insignificant to justify a long and costly trial.

One should however congratulate the French courts for standing up to the providers of social media and ensuring that the fundamental values of French law are enforced.
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