French Consumer Law is a comprehensive and comparative overview of French and EU law in this field, covering: advertising, unfair commercial practices, conditions for the validity of contracts, unfair terms, product conformity, latent defects, product safety.

French Consumer Law

Article 1 of the Law of 29 July 1881 proclaims the principle of freedom of the press. As a corollary of that freedom, the editor-in-chief is liable, under Article 42 of the 1881 Law, for any crimes or torts committed through the press. As control over content falls to him/her, the director has the discretion to refuse to publish any item he/she deems contrary to the provision, which does not disti …

Refusal to run ad

Article 1 of the Law of 29 July 1881 proclaims the principle of freedom of the press. As a corollary of that freedom, the editor-in-chief is liable, under Article 42 of the 1881 Law, for any crimes or torts committed through the press. As control over content falls to him/her, the director has the discretion to refuse to publish any item he/she deems contrary to the provision, which does not distinguish between substantive articles and advertisements.

Although refusals to sell constituted an offense subject to criminal penalties , the Court of Cassation, deeming that press freedom should prevail over the competition law rules, laid down the principle that the editor-in-chief of a newspaper is entitled to refuse to run an advertisement . The repeal of that offense by Law No 96-588 of 1 July 1996 further strengthened the freedom of the media. Now settled case law, this solution has been formalized in Article 14 of the Code of Advertising Practices under which advertising media reserve the right to refuse an insertion order without having to specify the reasons.

Although the editor-in-chief is free to refuse to run an ad, the exercise of that right must be free of abuse. A refusal can be valid even if no reason is provided: it can be justified due to the ambiguous nature of a message aimed at elderly readers , the fact that the placement of the ad was requested when all available spaces were already reserved , or due to the fact that the tone of the ad conflicts with the editorial policy and spirit of the publication . However, even though the editor-in-chief is not required to explain its refusal to place an ad  , when the victim of the refusal can prove that the reasons given voluntarily by the latter are fallacious  or that the decision is due solely to the fact that the advertiser is a competitor , the court may sanction the refusal for abuse of right . The Competition Authority may also consider a refusal to run an ad to be contrary to Article L. 420-1 of the Commercial Code where it is the result of collusion  or of Article L. 420-2 of the same code where the refusal is by a journal in a dominant position on the relevant market, is discriminatory and has an anticompetitive object or effect . If it meets the requirements, a refusal can also be assessed under the provision governing sudden terminations of established commercial relationships .

A publication can refuse to run an ad on the basis of a term in its general terms and conditions of sale. Where terms have been accepted by the advertiser, the parties are bound by them and this avoids all debate as to the validity of the decision of the advertising medium .

Article 36 of Ordinance of 1 December 1986.

Cass. crim., 3 October 1983, LawLex200300002908JBJ, quashing the decision making a refusal to run an ad subject to the competition rules.

Competition Council Decision No 00-MC-06 of 18 May 2000, LawLex200400000907JBJ; No 04-D-14 of 20 April 2004, LawLex200400000908JBJ; CA Paris, 17 September 2014, LawLex201400000948JBJ: a refusal by a regional daily newspaper in a dominant position on the market of paper death notices, to run an ad informing the public of the option to send their condolences to the families through the company's website of the company is abusive, insofar that this refusal leads to foreclosure effect on the related online obituary notices market.

CA Paris, 29 February 2008, LawLex200800001120JBJ; cf. CA Paris, 26 October 2018, LawLex201800001607JBJ, holding that if refusals to accept an advertisement by a media sales company may constitute a sudden termination of the established commercial relationship, they are justified when the orders presented do not correspond to the territorial limits stipulated in the contract and do not comply with the requirements of the Sapin Law.

CA Paris, 3 May 2000, LawLex200300003174JBJ; CA Rennes 21 January 1997, LawLex200300001434JBJ: the general terms of sale of the advertiser included that in the case of a negative opinion from the Bureau de Vérification de la Publicité (former advertising standards authority), it reserved the right not to run the ad of its co-contractor. The court properly applied the contractual provisions by upholding the validity of the refusal by the advertising medium, after reviewing of the decision of the BVP which had issued an unfavorable opinion due to the disparaging nature of the message.

CA Paris, 14 January 1993, LawLex200300003193JBJ.

CA Paris, 3 May 2000, LawLex200300003174JBJ; 26 October 2018, LawLex201800001607JBJ, holding that the clause in a media sales contract under which terms the medium may refuse an advertising order in the event of unavailability of space at the time of closure is not of a discretionary nature that would make it contrary to the provisions of Article L. 442-1, I, 2° of the Commercial Code, since the fulfillment of the condition does not depend on its will alone.

Cass. com., 19 October 1993, LawLex200300002910JBJ, upholding CA Grenoble, 17 April 1991, LawLex200300001390JBJ.

Cass. com., 19 October 1993, LawLex200300002910JBJ.

CA Versailles, 28 January 1999, LawLex200300001482JBJ.

Cass. com., 12 July 1993, LawLex200300002909JBJ, upholding CA Saint-Denis de la Réunion, 14 June 1991, LawLex200300001395JBJ; CA Rennes, 28 January 2020, LawLex202000000136JBJ, holding that a refusal to run an ad justified by an infringement of the commercial interests of the medium, a competitor of the advertiser, is abusive when the same situation had not deterred it in the past from executing similar orders on the advertiser's behalf. But see CA Paris, 29 October 2001, LawLex200200000436JBJ, upholding Paris T. com. 17 January 2000, LawLex200300002989JBJ (rulings based on absence of abuse of dominant position and discriminatory practices); Paris T. com. 26 September 2000, LawLex200200000035JBJ: one cannot be required to advertise for a competitor.

CA Versailles, 7 October 1999, LawLex200300001533JBJ: refusal to run a purely technical advertisement;Cass. com., 3 April 2002, LawLex200300001302JBJ upholding CA Rennes, 19 March 1997, LawLex200300000974JBJ: refusal based on non-compliance of the advertisement with a regulation that the medium did not have the authority to enforce and which was also discriminatory.

Competition Council Decision No 92-D-43 of 30 June 1992, LawLex200200002881JBJ: declaring Articles L. 420-1 and L. 420-2 inapplicable;Cass. com., 3 June 2014, LawLex201400000725JBJ, LawLex201400000726JBJ, LawLex201400000727JBJ and LawLex201400000728JBJ: the parallel behavior resulting from the refusal to run an ad by several newspapers in the same company does not reveal the existence of an agreement if no evidence of a common intention by the news organizations at issue is brought.

The advertisement must be published in compliance with the specifications of the purchase order. Where the advertiser claims that the ad inserted does not comply with its specifications, in order to obtain compensation, proof of a fault by the medium, which requires demonstrating the non-performance of the contract or the unsatisfactory execution of the order, must be brought. In practice, bringing such proof is not easy  unless the advertiser has taken the precaution of making his agreement subject to the signing of the final proof. This procedure allows any liability to be avoided in the event of non-compliance of the advertisement published with the final proof. The advertiser is thus not required to pay the advertising medium for inserting an ad when the latter had not submitted a final proof for signature for an order which had been canceled . However, the lack of a final proof cannot be legitimately invoked by the advertiser where the graphic elements for the realization of the ad were not provided within the prescribed time-limit , or where the various advertising visuals have been communicated to the advertiser who gave precise instructions as to changes to be made . 

Wrongdoing by the advertising medium can take various forms. Publication errors are likely to give rise to liability where they amount to serious and inexcusable mistakes on the part of an advertising professional  or where the advertiser had asked for the mistakes to be corrected . This is also the case where the ad is not published , or is published under a heading not matching the advertiser's activvity , or where the advertiser's contacts details are incorrect . The medium must also ensure the integrity of the advertising message. The medium's liability is incurred for poor quality printing, the illegibility of coupons and the overlap of colors . Further, the medium is not authorized to unilaterally change the text of the ad provided by the advertiser  even if the changes are intended to bring it into compliance with the ethical rules applicable to the advertiser . Nevertheless, the consent of the advertiser for the changes proposed by the medium prohibits him subsequently from contesting the payment of the service rendered . The breach by the medium of its duty to provide advice on which sections of its directory best fits the advertiser's business  or the execution of the order after the deadline  are also wrongful.

The relations between the parties are not formalized solely by the final proof and the order by the advertiser but are governed by the terms and conditions of sale of the advertising medium. They can settle the method of execution of the service and, where applicable, contain a limitation of liability clause . The law of obligations precludes the enforceability of such clauses against an advertiser in the event of gross negligence by the advertising medium. Gross misconduct can be characterized by the total failure to publish the ad  or misspelling the advertiser's name . On the other hand, the publication of an ad without making the modification requested by the advertiser , late publication , or mistakes in the photocomposition  do not amount to gross misconduct. 

The advertiser must also demonstrate the existence of harm/loss, which is often characterized by the loss of opportunity to develop a new clientele , a limitation of the intended effect of the campaign , or, if it can be established, loss of profits . However a court has held that the offer not to charge for a defective paper publication and to run a defect-free ad online was capable of compensating for the damage to the advertiser .

The advertiser must, finally, establish a causal link between the errors committed in the publication of the advertising message and the alleged loss of turnover alleged and will not be able to obtain damages merely for the loss of the opportunity to expand its customer base .

CA Paris, 12 June 1998, LawLex200300001437JBJ: the advertiser must pay for the insertion in the absence of evidence of the scope of the services ordered from the advertising medium, and of any wrongdoing by the latter.

CA Lyon, 9 January 2003, LawLex200300002947JBJ.

CA Aix-en-Provence, 28 March 2012, LawLex201200002211JBJ, unilateral change of the areas of publication of the magazine and change of the advertiser's slogan.

Cass. 1re civ., 6 October 1998, LawLex200300002913JBJ, upholding CA Versailles, 9 May 1996, LawLex200300001428JBJ.

Cass. com., 25 March 2003, LawLex200300001332JBJ, upholding CA Saint-Denis de la Réunion, 7 December 1999, LawLex200300003274JBJ.

CA Paris, 25 November 1997, LawLex200300003190JBJ.

CA Toulouse, 10 February 2000, LawLex200300002944JBJ.

See, for a clause not guaranteeing the location requested in the purchase order,Cass. com., 22 June 1993, LawLex200300002914JBJ, censuring T. com. Toulon, 23 May 1991, LawLex200300001494JBJ. 

CA Paris, 20 September 1990, LawLex200300001932JBJ: even if the failure to publish the ad is the result of an error in the computer system, this omission constitutes gross misconduct equivalent to deception due to the essential character of the obligation.

CA Douai, 16 November 1998, LawLex200300002946JBJ.

CA Paris, 18 November 1993, LawLex200300002986JBJ.

CA Paris, 21 December 2001, LawLex200300002340JBJ: the limitation of liability clause contained in the general conditions of the advertising medium must apply when the fault committed by the latter is not gross misconduct, and it is not referred to in the clause itself.

CA Aix-en-Provence, 25 January 2012, LawLex201200002213JBJ.

CA Paris, 6 October 1995, LawLex200300001419JBJ: relatively minor grievances and lack of evidence of any commercial harm resulting from defects.

Cass. com., 13 October 1992, LawLex200300002912JBJ; CA Paris, 3 November 1995, LawLex200300003178JBJ: risk of customer poaching when the coordinates assigned to the advertiser are those of its competitors; 14 December 1993, LawLex200300003191JBJ; 25 November 1997, LawLex200300003190JBJ: absence of impact of a badly placed ad; 12 February 1999, LawLex200300001485JBJ: information not correctly copied; CA Aix-en-Provence, 16 September 1999, LawLex200300002950JBJ ; CA Toulouse, 10 February 2000, LawLex200300002944JBJ:publication deadline missed.

CA Paris, 10 October 1997, LawLex200300003098JBJ; CA Nancy, 17 May 2000, LawLex200300002952JBJ.

CA Aix-en-Provence, 30 January 2014, LawLex201500001071JBJ.

CA Paris, 9 September 2016, LawLex201600001421JBJ.

CA Paris, 12 February 1999, LawLex200300001485JBJ.

CA Montpellier, 10 May 2011, LawLex201200000880JBJ.

CA Paris, 14 December 1993, LawLex200300003191JBJ; 12 February 1999, LawLex200300001485JBJ.

Cass. com., 25 May 1992, LawLex200300002911JBJ, upholding CA Orléans, 16 May 1989, LawLex200300001382JBJ.

CA Paris, 31 October 2002, LawLex200300002987JBJ; CA Aix-en-Provence, 30 January 2014, LawLex201500001071JBJ: no publication of ad ordered on the date stipulated in the contract, which was crucial for the advertiser.

Cass. com., 13 October 1992, LawLex200300002912JBJ upholding CA Paris, 25 September 1990, LawLex200300001386JBJ; CA Paris, 12 February 1999, LawLex200300001485JBJ: combination of activities of the advertiser.

CA Paris, 14 December 1993, LawLex200300003191JBJ; CA Paris, 3 November 1995, LawLex200300003178JBJ: mix up of names and addresses of two competing undertakings; 12 February 1999, LawLex200300001485JBJ; CA Aix-en-Provence, 16 September 1999, LaxLex20030000259; CA Nancy, 17 May 2000, LawLex200300002952JBJ: contact details not published.

CA Paris, 10 October 1997, LawLex200300003098JBJ.

French Consumer Law

57. Refusal to run ad

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

57. Refusal to run ad

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise