After numerous reports and propositions drafted over the past years, a public national consultation and almost a year of discussions before the French Parliament, the much awaited Law no. 2016-1321 of 7 October 2016 for a Digital Republic (“French Digital Law”) has finally been promulgated. Although it officially entered into force on 9 October 2016, a number of implementing Decrees still need to be published before the Law will become fully effective. The Government published a provisional calendar of the dates when the Decrees should be ready and intends for all of them to be published within the next 6 months.
As mentioned in our previous publications, the regulation of platforms is at the core of this ambitious reform. However, the Digital Law also contains numerous provisions in relation to the protection of personal data such as provisions relating to the secrecy of online correspondence, digital death, data retrieval and portability, or the so-called “right to be forgotten for minors”.
The importance that the French lawmaker places on data privacy is also confirmed by the drastic increase of the sanction powers of the French Data Protection Authority (CNIL). The CNIL will now be able to impose a maximum fine of 3 million Euros (instead of 150,000 Euros previously), this new sanction power being effective immediately for any infringement committed after entry into force of the Digital Law.
Below is a selection of what you should bear in mind with respect to the main innovations of the Digital Law.
1. A legal definition of “operators of online platform”
“Operators of online platforms” are now defined in a new Article L. 111-7 of the French Consumers Code as follows: “Is qualified an operator of an online platform any natural or legal person, offering, on a professional basis, including for free, an online public communication service consisting in:
1° classifying or referencing contents, goods or services offered or uploaded by third parties, by using computerized algorithms;
2° or putting in relation several parties for the sale of a good, the provision of a service or the exchange or sharing of content, a good or a service“.
In other words, the new definition of platforms as adopted by the French Digital Law covers not only digital intermediaries (i.e. websites putting in relation different people) but also websites whose main activity is to classify or reference “contents, goods or services” offered or uploaded by third parties, by using computerized algorithms.
The definition of platform is very wide and is therefore likely to cover a lot of different websites or apps such as search engines, social networks, marketplaces, content-sharing websites (videos, photos, documents, music, etc.), knowledge-sharing websites, App stores, online payment systems, audio-visual or musical platforms and content aggregators. Price comparison websites will eventually also be covered by this definition, when the implementing Decree will be adopted.
As explained during the debates before the French Parliament, the French Digital Law did not intend to create a new category of Internet intermediaries. As a result, the regime applicable to platforms would be added to those of the European Directive on electronic commerce and would apply to operators, whether they are editors or hosting providers. The coexistence of these regimes may create difficulties especially for hosting providers which hence benefit from a limited liability regime.
2. Loyalty obligations towards consumers
The French Digital Law imposes on all operators of online platforms a general duty to deliver “loyal, clear and transparent information” on various kinds of information, among which the “general terms and conditions of use of the intermediation service it is offering and on the methods of referencing, classification and dereferencing of the contents, goods and services to which this service provides access“, but also on “the existence of any contractual relationship, capitalistic link or direct remuneration to its benefit, from the moment when they impact the referencing or classification of the goods, services and contents offered or uploaded“. The conditions of application of this provision will be subsequently specified by a Decree, which will have to take into consideration the nature of the platform’s activity.
Major platforms are imposed additional obligations. Indeed, the new Article L. 111-7-1 of the French Consumers Code provides that platforms exceeding a threshold of number of connections, to be later defined by a Decree, must establish good practices and make them available to consumers in order to reinforce their obligations of clarity, transparency and loyalty.
Finally, platforms undertaking “as their main or secondary activity, to collect, moderate or broadcast online reviews from consumers” are also subject to new obligations. A clear, loyal and transparent information about platforms’ publication requirements and processing of online reviews must be provided to users.
Regarding platforms, the Government intends to publish the implementing Decrees by March 2017.
3. The extension of data portability beyond GDPR limits
The French Digital Law provides for the creation of a new right relating to data portability and retrieval for consumers and, to this end, would insert a new section in the French Consumer Code, which will only be applicable from 25 May 2018.
Article L. 224-42-1 of the French Consumers Code states that “In any event, consumers have the right to retrieve all their data“. By targeting “all” the data, the Digital Law goes beyond the European General Data Protection Regulation (“GDPR”) of 27 April 2016. Indeed, Article 20 of the GDPR only covers data subjects’ personal data whereas the right created by the French Digital Law extends its scope to consumers’ non-personal data (e.g. any files uploaded by the consumer and associated use data such as a music playlist).
It is complex at this stage to get the full picture of the obligations which will eventually be imposed on platforms and online operators given that a lot of important information is still missing, pending the adoption of the implementing Decrees. It is therefore of great importance to keep an eye open and monitor the adoption of the said Decrees. Meanwhile, if you would like to get more information on the French Digital Law, please let us know, we would be happy to help.