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

Do practices that involve, inter alia, incitement to send an SMS or referring to social media fall under the prohibition of surreptitious advertising? The CSA (now Arcom) responded to this question in several recommendations and resolutions which specify the conditions in which it considers these practices to be compatible with the regulations.
1) 	Insertion of subliminal images
In a recommendatio …

Specific practices

Do practices that involve, inter alia, incitement to send an SMS or referring to social media fall under the prohibition of surreptitious advertising? The CSA (now Arcom) responded to this question in several recommendations and resolutions which specify the conditions in which it considers these practices to be compatible with the regulations.

In a recommendation of 27 February 2002 , the regulatory authority ruled on practices whereby subliminal images are inserted in programs, techniques that are prohibited in Article 9(1)(b) of Directive No 2010/13 and 10 of Decree No 92-280. Having defined subliminal techniques “as aimed at reaching the subconscious of the viewer by the very brief exposure of images”, the authority recalls that the presence of such images is not compliant with the regulations, whether or not they are of an advertising nature. It specifies that any publisher of services is responsible for the content of the programs it broadcasts, whether they have been produced or realized by it or by third parties.

2) 	Incitement to use SMS or premium rate telephone services

Incitements to use SMS or premium rate telephone services outside advertising slots, in particular to participate in a program or game, vote or testify, have multiplied. The authority deemed it necessary to take a position in a deliberation of 4 December 2007 on the compliance of this practice with the prohibition of surreptitious advertising . To comply with Article 9 of Decree No 92-280, incitements to use SMS or premium rate telephone services must fulfill three cumulative conditions:

- 	the referral to a premium rate services is a direct extension of the program being broadcast ;

- 	the premium rate service is in direct relation with the program that refers to it and is complementary thereto;

- 	the reference only appears on air in an ad hoc and unobtrusive manner.

Arcom indicates that viewers should be fully informed about the cost of using these services, which must be brought to the attention of viewers in the same conditions as the number of the SMS or telephone service: in case of display on the screen, the cost of the service must be shown in characters identical to those of the service number .

The regulatory authority also considered, in a recommendation dated 4 January 2013  on a recent practice whose use has spread rapidly, consisting in mentioning social networks during programs, to strengthen interactivity with the public. It allows such references in two cases:

-	when the mention of the social network is intended to indicate the source of information or testimony;

-	when the referral of the public to the social network is done in an ad hoc and unobtrusive manner, has no advertisements and is free of any excessive incitement to connect to the social network.

However, inserting the name of a social network in the title of a program, or displaying the registered trademarks of a social network or images and distinctive signs associated with it, is contrary to the prohibition of surreptitious advertising.

 Recommendation of 27 February 27 2002 regarding the insertion of subliminal images in programs, following the insertion of subliminal images in the program Popstars, introduced during editing operations implementing digital technologies.

 Deliberation of 4 December 2007 on incitements to use SMS or premium rate telephone services.

 For an application, see CSA, 24 April  2007, giving notice to Multimédia, LawLex201200001150JBJ.

 CSA, 24 April 2007, giving notice to Index Multimédia, LawLex201200001150JBJ, cited above.

 See CSA press release of January 4, 2013 on recommendations relating to the mention of social networks in television and radio programs, http://www. csa.fr/Espace-Presse/Communiques-de-presse/Recommandations-relatives-a-la-mention-des-reseaux-sociaux-dans-les-programmes-de-television-et-de-radio

French Consumer Law

96. Specific practices

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

96. Specific practices

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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