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

Audiovisual advertising is regulated by two legislative instruments in Europe: Directive No 2010/13 of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services (AMS) Directive) , which is applicable to television broadcasts in the Member States of …

European regulation

Audiovisual advertising is regulated by two legislative instruments in Europe: Directive No 2010/13 of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services (AMS) Directive) , which is applicable to television broadcasts in the Member States of the EU and the European Convention on Transfrontier Television of 5 May 1989, which lays down the terms governing such broadcasts in 31 plus signatory countries. The two texts contain almost identical provisions particularly with regard to advertisements, which may be freely broadcast subject to compliance with basic standards. The following are also relevant to audiovisual advertising: 

- the first “Telecoms Package” directive, No 2009/140 of 25 November 2009 ; 

- the second “Telecoms Package” directive, No 2009/136 of 25 November 2009 ; 

- Directive No 2000/31 of 8 June 2000 on e-commerce ; 

- Directive No 2015-1535 of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services ; 

- the Treaty of 2 October 1990 between France and the various German Länder governing the European cultural TV channel ARTE. 

The AMS Directive aims to promote the freedom of movement and trade in television programs by reducing the risk of the creation of dominant positions which would lead to restrictions on pluralism and freedom of information. It covers audiovisual media services exclusively , whether television broadcasts (content sent to the viewer or “push content” ), on-demand services (content requested by the user or “pull content” ) or commercial audiovisual communications, regardless of their form. The directive gives a broad definition of the concept of commercial communication and primarily applies to the duration of advertisements, the interruption of TV programs, compliance with ethical standards, the advertising of alcohol, tobacco, electronic cigarettes and refill containers, as well as medicinal products and the sponsorship of TV programs. There is a minimal level of harmonization and the Member States retain the possibility of adopting more detailed or stricter rules in the fields coordinated by the directive provided that they are in compliance with Union law . 

The AMS Directive was revised by Directive No 2018-1808 of 14 November 2018  to take into account the arrival of new types of audiovisual content - particularly user-generated content, changes in viewing habits, i.e. those of younger generations, which have moved to other, portable devices rather than television screens to watch audiovisual content, and the increasing importance of new players in the sector such as video-sharing platforms  now governed by specific provisions. Like Article 2 of the directive regarding media service providers, Article 28a  states that each Member State must ensure compliance by providers of video sharing platforms under their jurisdiction with the rules applicable to them (listed in Article 28b)  and sets out certain jurisdiction rules. It also provides that Member States must establish a list of the video-sharing platform providers established on their territory or deemed to have been established on their territory, and the Commission must ensure that such lists are made available in a centralized database.

The amended directive also recommends the use of co-regulation and the fostering of self-regulation through codes of conduct adopted at national level  (Art. 4b). In particular, the Member States must ensure their effectiveness in protecting minors, consumers and public health (recitals 28 to 31 of Directive No 2018/1808). Further, since the liberalization of product placement has not brought about the expected take-up of this form of audiovisual commercial communication, the directive has amended the rules switching from a general prohibition of product placement to its authorization in all audiovisual media services and video-sharing platform services, subject to exceptions (Art. 11). The directive reaffirms the importance of the European Regulators Group for Audiovisual Media Services (ERGA)  for a consistent application of the regulatory framework for audiovisual media services within the European Union. Thus, under new Article 30b, the ERGA must provide expertise Commission, and to give, if it so requests, opinions on the technical and factual aspects of related matters, exchange experience and best practices on the application of the regulatory framework for audiovisual media services and foster cooperation by providing its members with the information necessary for the application of the directive. The amended directive is accompanied by two sets of guidelines - the Guidelines on video sharing platforms  and the Guidelines on European works   - which aim to facilitate the assessment of the essential functionality criterion in the definition of a "video-sharing platform service  , the calculation of the share of European works in video-on-demand catalogs  and the definition of low audience and low turnover.

Directive No 2010/13 of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services, OJEU L 95, 1, which repeals and codifies Directive No 89/552 of 3 October 1989, the “Television without frontiers” directive.

Amending Directive No 2002/21 on a common regulatory framework for electronic communications networks and services, Directive No 2002/19 on access to, and interconnection of, electronic communications networks and associated facilities and Directive No 2002/20 on the authorization of electronic communications networks and services, OJEU L 337 of 18 December 2009.

According to Article 1 paragraph 1 (aa) “video-sharing platform service” means a service as defined by Articles 56 and 57 of the Treaty on the Functioning of the European Union, where the principal purpose of the service or of a dissociable section thereof or an essential functionality of the service is devoted to providing programmes, user-generated videos, or both, to the general public, for which the video-sharing platform provider does not have editorial responsibility, in order to inform, entertain or educate, by means of electronic communications network within the meaning of point (a) of Article 2 of Directive 2002/21/EC and the organisation of which is determined by the video-sharing platform provider, including by automatic means or algorithms in particular by displaying, tagging and sequencing".

Directive No 2010/13, Article 28a states: “For the purposes of this Directive, a video-sharing platform provider established on the territory of a Member State within the meaning of Article 3(1) of Directive 2000/31/EC shall be under the jurisdiction of that Member State. | 2.   A video-sharing platform provider which is not established on the territory of a Member State pursuant to paragraph 1 shall be deemed to be established on the territory of a Member State for the purposes of this Directive if that video-sharing platform provider: | (a) | has a parent undertaking or a subsidiary undertaking that is established on the territory of that Member State; or | (b) | is part of a group and another undertaking of that group is established on the territory of that Member State. | For the purposes of this Article: | (a) | “parent undertaking” means an undertaking which controls one or more subsidiary undertakings; | (b) | “subsidiary undertaking” means an undertaking controlled by a parent undertaking, including any subsidiary undertaking of an ultimate parent undertaking; | (c) | “group” means a parent undertaking, all its subsidiary undertakings and all other undertakings having economic and legal organizational links to them. | 3.   For the purposes of applying paragraph 2, where the parent undertaking, the subsidiary undertaking or the other undertakings of the group are each established in different Member States, the video-sharing platform provider shall be deemed to be established in the Member State where its parent undertaking is established or, in the absence of such an establishment, in the Member State where its subsidiary undertaking is established or, in the absence of such an establishment, in the Member State where the other undertaking of the group is established. | 4.   For the purposes of applying paragraph 3, where there are several subsidiary undertakings and each of them is established in a different Member State, the video-sharing platform provider shall be deemed to be established in the Member State where one of the subsidiary undertakings first began its activity, provided that it maintains a stable and effective link with the economy of that Member State. | Where there are several other undertakings which are part of the group and each of them is established in a different Member State, the video-sharing platform provider shall be deemed to be established in the Member State where one of these undertakings first began its activity, provided that it maintains a stable and effective link with the economy of that Member State. | 5.   For the purposes of this Directive, Article 3 and Articles 12 to 15 of Directive 2000/31/EC shall apply to video-sharing platform providers deemed to be established in a Member State in accordance with paragraph 2 of this Article”. 

Under Article 28b Member States must, without prejudice to Articles 12 to 15 of Directive No 2000/31/EC, ensure that video-sharing platform providers under their jurisdiction comply with the ethical requirements laid down in Article 9(1) of the directive, which in particular provide for an exemption from liability for automatic, intermediate and transient storage of unlawful information transmitted, and take appropriate measures to protect: | (a) | minors from programs, user-generated videos and audiovisual commercial communications which may impair their physical, mental or moral development in accordance with Article 6a(1); | (b) | the general public from programs, user-generated videos and audiovisual commercial communications containing incitement to violence or hatred directed against a group of persons or a member of a group based on any of the grounds referred to in Article 21 of the Charter; | (c) | the general public from programs, user-generated videos and audiovisual commercial communications containing content the dissemination of which constitutes an activity which is a criminal offense under Union law, namely public provocation to commit a terrorist offense as set out in Article 5 of Directive (EU) 2017/541, offenses concerning child pornography as set out in Article 5(4) of Directive 2011/93/EU and offenses concerning racism and xenophobia 

Established by Commission Decision C(2014) 462 final of 3 February 2014.

Guidelines on the practical application of the essential functionality criterion of the definition of a “video-sharing platform service” under the Audiovisual Media Services Directive 2020/C 223/02 of 20 July 2020.

Guidelines pursuant to Article 13(7) of the Audiovisual Media Services Directive on the calculation of the share of European works in on-demand catalogues and on the definition of low audience and low turnover 2020/C 223/03 of 7 July 2020.

The guidelines on video-sharing platforms provide a list of relevant indicators, divided into four categories, that Member States can use in their assessment of the essential character of the audiovisual functionality of any platform. The guidelines suggest, for example, indicators relating to the non-ancillary (or stand-alone) character of the audiovisual content, its qualitative and quantitative importance, the monetization of audiovisual content and the availability of tools aimed at enhancing its visibility or attractiveness - which allow Member States to determine whether platforms, including certain “hybrid” services i.e. where the provision of videos and programs is not the principal purpose of the service, but still constitutes an “essential functionality” thereof will be covered by the new rules applicable to video-sharing platforms.

The guidelines on European works strengthen cultural diversity, notably by introducing obligations for video on-demand services to ensure at least a 30% share of European content in their catalogues and to give prominence to such content. To do so they recommend a method of calculation based on the number of titles in the catalog and not on transmission time.

Amending Directive No 2002/22 on universal service and users' rights relating to electronic communications networks and services and Directive No 2002/58 concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws, OJEU L 337 of 18 December 2009, 11.

On certain legal aspects of information society services, in particular electronic commerce, OJEC L 178 of 17 July 2000, 1.

OJ L 241 of 17 September 2015, 1. Directive No 2015-//1535 repeals and replaces Directive 98/34 of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations, Art. 8 and 9, OJ L 204 of 21 July 1998, 37 to 48.

The definition of “audiovisual media service” of Directive No 2010/13 covers neither a video channel on YouTube , on which internet users can view short promotional videos for new passenger car models, nor a single video of that kind considered in isolation, insofar as neither one has as its principal purpose the provision of programs in order to inform, entertain or educate the general public, Case C-132/17 Peugeot Deutschland GmbH, Judgment of 21 February 2018, LawLex201800000314JBJ.

i.e. a linear audiovisual media service defined in Article 1(e) of the directive as “an audiovisual media service provided by a media service provider for simultaneous viewing of programs on the basis of a program schedule”.

i.e. a non-linear audiovisual media service defined in Article1(g) of the directive as “an audiovisual media service provided by a media service provider for the viewing of programs at the moment chosen by the user and at his individual request on the basis of a catalogue of programs selected by the media service provider”.

French Consumer Law

81. European regulation

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81. European regulation

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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