France, Paris First Degree Court , 9 April 2019 14/07298

Identification of the case

• Respect for private and family life (art. 7 CFREU)
• Protection of personal data (art. 8 CFREU)
• Consumer protection (art. 38 CFREU)

• Consumer Code, in particular Articles L. 111-1, L. 211-1 and L. 212-1
• Law No. 78-17 of 6 January 1978 on information technology, data files and civil liberties

• Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

Summary of the case

The association UNION FÉDÉRALE DES CONSOMMATEURS – QUE CHOISIR (hereinafter UFC – QUE CHOISIR) has brought an action before the Paris First Degree Court against Facebook for the purpose of establishing the unfair or unlawful nature of clauses in the platform's "General Terms and Conditions of Use" in the 2013, 2015 and 2016 versions, to have them deleted or deemed to be unwritten and to repair the damage caused to the collective interest of consumers.

UFC QUE CHOISIR has requested that all the contractual conditions proposed by Facebook be declared abusive and illegal on its internal website with regard to the Consumer Code in particular Articles L 111-1, L. 211-1 and L. 212-1. The applicant argued that Facebook terms of use were not accessible, clear and understandable and did not comply with the provisions of the Law No. 78-17 of 6 January 1978 on information technology, data files and civil liberties.

• Civil judicial enforcement
• Collective enforcement - Consumer association's action

Declare abusive and illegal all the contractual terms and conditions offered by Facebook to the consumer.

In line with previous decisions (TGI Paris, 7 August 2018, No. 14/07300, UFC Que Choisir v. Twitter ; TGI Paris, 12 February 2019, No. 14/07224, UFC Que Choisir v. Google) and the recommendation on social networking contracts of the Commission on Unfair Terms, the qualification of a consumer contract was retained even though Facebook noted that social network access was free.

Although the classification as a consumer contract does not imply that the contract is onerous, since this classification depends solely on the will of the parties to the contract and not on the subject matter of the contract, the fact that the activity is free of charge could lead to the exclusion of the status of professional for the person exercising it. The judges of the Paris Hight Court noted that "by collecting data submitted free of charge by the user when accessing the platform and by marketing them for a fee, the company Facebook, which, acting for commercial purposes, makes a profit from its activity, is a professional within the meaning of the introductory article of the Consumer Code” (TGI Paris, 7 August 2018, No. 14/07300, UFC Que Choisir v. Twitter ; TGI Paris, 12 February 2019, n°14/07224, UFC Que Choisir c/ Google). Thus the contract concluded between the company Facebook and the member of its social network is a consumer contract, subject to all the provisions of consumer law, subject only that the member does not use the network for professional purposes (CJEU 25 January 2018, C-498/16, Schrems). French consumer law and the regulations relating to distance contracts, consumer information, unfair terms, form and interpretation of the contract are applicable. The relevant clauses relating to the definition of the purpose of the service provided by the company Facebook can be assessed on the basis of the regulations on unfair terms.

Two articles of the Consumer Code were used to support the judges' reasoning. Article L. 211-1 imposing an obligation of clarity in the drafting of clauses, which implies in particular the use of French, and Article L. 111-1 imposing a general obligation of pre-contractual information. The underlying idea was that the social network can neither collect nor share the personal data of its users without having clearly informed them about the economic value of their data, just as it can neither suggest that its social network is disinterested, nor suspend/delete an account without justification or recourse, nor modify the general conditions without the users' information or agreement, nor exclude any liability on its part. The judges also relied on the Law No. 78-17 of 6 January 1978 on information technology, data files and civil liberties and justified its application with regard to Article 4§1(a) of the Directive 95/46/CE and to Article 5 1° of the referred Law No. 78-17. Indeed, the simultaneous display on the home page of the Facebook social network site of the user's personal data (surname, first name, date of birth) and advertisements related to the user's activities on the internet confirm that the sale of advertising space, conducted by the company Facebook, the data controller's establishment on French territory, constitutes processing of personal data within the meaning of Article 2(b) of Directive 95/46/EC and Article 2 of the Law No. 78-17 of 6 January 1978. The judges have used the Law No. 78-17 of 6 January 1978 in order to assess the illegality of the clauses and thus forbid the social network to use for free or to resell without time limit the contents created by its users, to keep indefinitely the data of its users even after the deletion of their account, or to remove a published content without warning its author.

Facebook has been convicted by the Paris First Degree Court for having inserted 430 abusive or illegal clauses in the Terms and Conditions of its social network with regard to articles 6, 32-I, 32-II, 32-II of the Law No. 78-17 of 6 January 1978 on information technology, data files and civil liberties, the law of 4 August 1994, and article L. 211-1 of the French Consumer Code. They will therefore be deemed to be unwritten. He also had to pay 30 000 euros to the association UFC-QUE CHOISIR in compensation for the moral prejudice caused to the collective interest of consumers. Then the judges order Facebook to allow all of its French members to read the entirety of this judgment by means of a hypertext link in an exclusively dedicated banner that must appear on the home page of its Internet site as well as on those of its tablet and telephone applications for a period of three months.

Role of the Charter and role of the general principles on enforcement

• Article 7: respect for private life and family
• Article 8: protection of personal data
• Article 38: consumer protection

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

• CJEU C-498/16, Schrems