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 6 of Directive No 2000/31 provides that commercial communications which are part of, or constitute, an information society service must comply with the following conditions:
-	 advertisements must be clearly identifiable as such; 
- 	 the person/entity on whose behalf the commercial communication is made must be clearly identifiable; 
-	  promotional offers, such as discounts, premiums and …

Identifying the advertisement and the advertiser

Article 6 of Directive No 2000/31 provides that commercial communications which are part of, or constitute, an information society service must comply with the following conditions:

-	 advertisements must be clearly identifiable as such; 

- 	 the person/entity on whose behalf the commercial communication is made must be clearly identifiable; 

-	  promotional offers, such as discounts, premiums and gifts must be clearly identifiable as such, and the conditions which are to be met to qualify for them must be easily accessible and be presented clearly and unambiguously; 

-	  promotional competitions or games must be clearly identifiable as such, and the conditions for participation must be easily accessible and be presented clearly and unambiguously. 

Article 20 of the LCEN Law of 21 June 2004 transposes the requirements relative to identification  the content of which is set out in the ARPP's recommendation on digital advertising and marketing communications . According to the ARPP, the obligation on identification of advertising can be met by “any clearly perceptible means immediately able to render unequivocal to the public that the message is an advertisment” . The Court of Cassation thus considered that an internet user should not, in order to obtain this information, be forced to show curiosity and open a number of windows or click on a particular field . The ARPP makes a distinction according to whether or not it is clear that the message is for advertising purposes. If it is clear, there is no need to provide other identifying elements; however where it is not, an explicit indication allowing it to be identified as such i.e. which is legible or audible and intelligible  should be added. Advertising formats concerned are highly varied: websites, e-mails, electronic direct-mail, “spamming”, pop-up ads, advertising banners, social media,  video games intended for the promotion of a product, service, brand, event ("advergames"),in-game advertising, advertising forums, augmented reality (consisting of the superimposing of digital images onto real-world images) and virtual universes (virtual worlds in which users can interact using avatars). This is also the case according to the ARPP , for advertising blogs, sponsored posts (messages published by the user on behalf of an advertiser for payment) or “sponsored links” (advertising links through purchase of a keyword), usually located in a specific separate area of the page, on the right, or on the top of the results proposed by search engines following a user search (including for “contextual commercial links”, i.e. inserted into editorial content) which must be able to be identified as such, without ambiguity, in a clear and immediate manner, if necessary by an express indication, under penalty of constituting hidden advertising. A price comparison website , or a referencing site for online retailers  have been regarded as constituting hidden advertising. 

The identity of the advertiser must also be clearly visible by the public and easily accessible. Cited as examples by the ARPP, are the visualization of the advertiser's brand or of a distinctive sign associated with the advertiser. The ARPP also indicates that in any case, an advertising message may not “mislead the public as to the identity of its person issuing and its aim” . A distributor may not therefore claim in an online advertisement to be the exclusive distributor of a product for France when this is not the case .

The conditions relating to promotional offers, and promotional competitions or games proposed online laid down in Article 6 of Directive No 2000/31 were added to Article L. 121-15-1 (now Article L. 122-8)  and L. 121-15-2 (now L. 122-9)  of the Consumer Code by Law No 2004-575. Article L. 121-15-3, paragraph 1 (now  Article L. 122-10), also added by virtue of Law No 2004-575, extended the provision to “professional” targets (B2B).

Article 7 of Directive No 2000/31 on unsolicited commercial communication by e-mail requires that such communications be identifiable clearly and unambiguously as such as soon as they are received by the recipient. The directive also requires Member States to take measures to ensure that service providers consult regularly and respect the opt-out registers  in which natural persons can register themselves.

In French law, Article L. 122-8 (formerly L. 121-15-1) of the Consumer Code provides that advertisements sent by e-mail must be able to be identified clearly and unequivocally as soon as they are received, or in the case of technical impossibility, in the body of the message. The email should also provide an address or electronic means by which the recipient may send a request to stop receiving such e-mails.

"Any advertising, in whatsoever form, accessible to the public by an online communication service, must be clearly identifiable as such. It must render clearly identifiable the natural or legal person on whose behalf it is made."

The ARPP also specifies in its recommendation the scope of this identification obligation of identification as regards certain specific formats.

"Advertisements and especially promotional offers, such as discounts, premiums or gifts, as well as the promotional competitions or promotional games, sent by e-mail, must be able to be identified in a clear and unequivocal manner as soon they are received by the recipient or, in the case of technical impossibility, in the body of the message. These messages must indicate an address or effective electronic means by which the recipient may send a request for such advertisements to cease" (wording of Ordinance of 14 March 2016).

"The conditions applicable to the possibility of benefiting from promotional offers or participating in competitions or promotional games, when such offers, competitions or games are proposed by electronic mail, must be clearly stated and readily accessible" (wording of Ordinance of 14 March 2016).

The "opt-out" system or possibility to block the sending of unsolicited digital communications which only becomes unlawful from the moment where the internet user has objected to the receipt of messages. "Opt in" mechanisms are is based from the outset on the prohibition of unsolicited e-mails.

ARPP Digital Advertising and Marketing Communication ( Recommandation ARPP "Communication publicitaire digitale"), Point 1.1, accessible à l'adresse suivante : https://www.arpp.org/wp-content/uploads/2016/08/Recommandation-Communication-publicitaire-digitale-v4-ARPP.pdf

Court of Cassation, 29 November 2011, LawLex201100001906JBJ; 14 December 2012, LawLex201200002444JBJ.

For applications se CA Grenoble, 21 October 2010, LawLex201000001367JBJ. For commercial links see CA Paris, 2 February 2011, LawLex201100000349JBJ; Court of Cassation, 13 July 2010, LawLex201000000864JBJ; TGI Paris, 7 January 2009, LawLex200900000206JBJ.

See interpretation grid for the Digital Advertising and Marketing Communication at: : https://www.arpp.org/wp-content/uploads/2016/08/Recommandation-Communication-publicitaire-digitale-v4-ARPP.pdf

CA Grenoble, 21 October 2010, LawLex201000001367JBJ

Court of Cassation, 4 December 2012, LawLex201200002444JBJ.

ARPP Digital Advertising and Marketing Communication, point 1.2, at:  http://www.arpp-pub.org/IMG/pdf/Reco_Comm_Pub_Digitale-3.pdf

CA Montpellier, 22 October 2002, LawLex200300001047JBJ.

French Consumer Law

77. Identifying the advertisement and the advertiser

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Les notions juridiques connexes

77. Identifying the advertisement and the advertiser

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise