Note: this article was translated from French by an automated tool Following the sanction of Google by the Paris tribunal de grande instance, on February 12, 2019, I answered questions from the Club des Juristes. You can also read my answers on the Legal Club blog.
On what grounds has the company Google been condemned?
The Google company was condemned on February 12, 2019 by the Paris Tribunal de Grande Instance (TGI Paris, February 12, 2019, n ° 14/07224), which considered unlawful a certain number of clauses appearing in the “Conditions of use” and the “Confidentiality rules” offered to users within the framework of the subscription to the social network “Google +”. The decision is mainly based on consumer law and the law n ° 78-17 of January 6, 1978 known as “Computing and Liberties”. In the field of consumer law, was invoked in particular article L 212-1 (formerly art. L. 132-1) which provides that “ in contracts concluded between professionals and consumers, clauses which have the object or the effect of creating, to the detriment of the consumer, a significant imbalance between the rights and obligations of the parties to the contract are unfair. ". In this case, the company Google maintained that the free nature of the service offered excluded both the application of consumer law and the possibility of a significant imbalance. The court dismissed the argument by stressing that, despite the absence of monetary consideration, the provision by the user of a certain amount of information exploited and valued by Google in the context of general and targeted advertising operations constituted the consideration for a service rendered against payment by a professional: consumer law is therefore applicable.
What are the consequences of this decision?
Very concretely, the decision has no direct consequences for users since the contested clauses have been withdrawn for several years. On the other hand, the decision is of undeniable interest in principle because it gives a large number of details as to what is expected of the platforms.
It is above all interesting to note that the TGI refused to pronounce the generally abusive character of the “Rules of confidentiality” and of the “Conditions of use” on the grounds that the user is offered beforehand the conclusion of a contract and generally provide "sufficiently clear and understandable information on the content and scope of his consent". The court therefore favored a clause-by-clause analysis. He then deemed unwritten 38 clauses. Several types of motives justify censorship.
First, a number of clauses do not contain sufficiently clear and detailed information, in particular as to the targeted advertising purposes pursued by Google. Certain clauses are thus insufficiently precise as to the conditions of collection and processing of data or their purposes, for example in the event of geolocation, the deposit of cookies or the use by Google of the profile picture and the user's activities. The same lack of precision is criticized in the clause conferring on Google a right of use free of charge on all content generated by the user, providing for the possibility for Google to modify or adapt content containing personal data, authorizing automatic content analysis to offer “relevant functionalities”, or relating to the articulation of general and specific or additional confidentiality rules.
Second, some clauses tend to presume or force the user's consent. This is the case of the clause which provides that the use of the service (i.e. registration followed by navigation on the site) implies acceptance of the general conditions of use, which presumes acquired the user's consent to the '' systematic indexing of its content or the transfer of its personal data to third parties or to third countries, the clause providing for possible substantial modifications to the contract without organizing the notification and collection of the user's consent, or the clause dissuading users from objecting to the systematic deposit of cookies.
Finally, other clauses turn out to be illegal because they exclude the application of French law in favor of American law in the event of possible copyright disputes, granting Google the discretionary right to unilaterally cease at any time to provide all or part of its services, excluding Google from liability in the event of a malfunction or refraining from implementing the user's right to have their data rectified.
Other companies use the same processes (notably Facebook). Do they risk being called into question ?
This decision should be compared with the judgment rendered by the same court last August (TGI Paris, August 7, 2018, n ° 14/07300) about Twitter, which censored nearly 266 clauses from the "Terms of Service", "Privacy Policy" and "Twitter Rules". The clauses presuming the consumer's consent - by virtue of his browsing on Twitter - to the contract and to the processing of his data, granting Twitter a right of use free of charge on all the user's content, have thus been deemed unlawful, authorizing the transfer of data to a third country or allowing Twitter to close a user's account while retaining their name without time limit.
It is clear from this case law that the absence of financial compensation does not make the service offered by the platforms a free service and that they are indeed professionals subject to consumer law. Likewise, the law of January 6, 1978 known as “Informatique et Libertés” is fully applicable to platforms, deemed to be data controllers, even if they do not have an establishment in France.
Finally, account should be taken of the recent decision of the National Commission for Informatics and Liberties (CNIL) (CNIL, restricted formation, delib. SAN-2019-001, Jan 21, 2019) which sentenced Google to a fine of 50 million euros for failure to comply with the obligations imposed by the General Data Protection Regulation (Reg. [EU] 2016/679, Apr 27, 2016). The CNIL in particular criticized Google for the lack of sufficiently clear information to allow users to understand the methods and consequences of the processing of their personal data for the purposes of behavioral analysis and advertising targeting, and therefore to provide an informed consent to these operations.
In such a context, the obligation to provide users with reliable and precise information and to enable them to join the social network in full knowledge of the facts concerns all operators. We can therefore expect that Facebook will also be condemned if it turns out that the proposed conditions are of the same nature as those which appeared in the contracts of Google and Twitter.