On March 2013, the French consumers’ organization has sent a formal notice to three major social networks: Facebook, Google and Twitter. A thorough review of the terms and conditions proposed by these social network providers revealed that those contractual terms are not compliant with many pieces of legislation, among which are the French Consumers’ Code, the French Data protection Act (1978) and the Code of intellectual Property. For UFC, the contracts are riddled with many grounds of illegality, and could be declared entirely unfair and/or illegal by a French court.
First and foremost, the way the contract is presented to the user does not allow him to fully consent:
- The documents are accessible through many hyperlinks on the website, preventing users to understand what the contractual terms are. The contract is not clearly delimited, and it contains numerous hyperlinks directing the user to either tutorials or contractual terms. Those pages could be draft in English, and not in French.
- Moreover, the professionals do not offer their contractual terms on durable medium, as required by the European court of Justice and by the French consumers Code. The only way for a consumer to access the contractual terms he agreed to, is to search online for the right version of terms and conditions. This is only possible when the different versions of the terms and conditions are archived on the website, and if those online versions bear a date!
- Such an effort isn’t enough: the professional reserve the right to modify, at its discretion, the contract without notification. Thus, even though it might never notify a new draft of its terms and conditions, the social network provider assumes that a user using the website after one of these modifications agrees to the new contract!
The terms and conditions are confusing: for instance, social networks tend to designate personal data by using the words “information”, “content” and not necessarily “personal data”. By using such an imprecise vocabulary, the social network providers
Finally, social networks providers drafted their contracts in order to exonerate themselves from all liability, whether they fail the consumers on their personal data, or on quality of service. One argument used by these companies to explain their exemption from all liability lies on the idea that the service provided is free. According to them, because there is no price to pay, the service is free and can’t “covered” by consumers’ code protection.
Such an argument has been disqualified by the “Commission des clauses abusives”. This commission – a joint advisory committee formed of judges, qualified personalities in law or technical contracts, consumer representatives, representatives of professionals – makes recommendations about clauses in contracts between businesses and consumers. In its recommendation n°2014-02 on social network contracts, the Commission has declared that social network providers are not offering a “free” service to their users because of the economic benefits of personal data processing by these networks.
UFC – Que Choisir, in its summons, endorses the idea that the contracts proposed by Facebook, Google and Twitter are filled with so many unfair or illicit terms that it could be wholly declared illegal by the French jurisdiction.
On June 2014, after unsuccessful attempts to negotiate with some of the social network providers, UFC – Que Choisir has summoned all three of them in Paris before the civil court. UFC aims to obtain from the French judge to rule the contracts illegal and to order, under financial compulsion, the professional to propose compliant terms and conditions.
On November 2014, the “Commission des clauses abusives” has released its recommendation n°2014-02 on social networks that supports the core elements of the consumers’ organization summons.
Since June 2014, all parties to the proceedings are exchanging their arguments. Although all three social network providers have changed their terms and conditions, those changes did not bear, for UFC – Que Choisir, any reel improvement. The case is still pending.