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

Since the introduction of television advertising in 1968, a control of advertising messages broadcast by radio and television services has been carried out by the French Advertising Authority (Régie Française de Publicité). The Law of 29 July 1982  then transferred this power to the HACA (Haute Autorité de la Communication Audiovisuelle), replaced in 1986  by the CNCL (Commission Nationale de la C …

 A posteriori control by the audiovisual regulatory authority

Since the introduction of television advertising in 1968, a control of advertising messages broadcast by radio and television services has been carried out by the French Advertising Authority (Régie Française de Publicité). The Law of 29 July 1982  then transferred this power to the HACA (Haute Autorité de la Communication Audiovisuelle), replaced in 1986  by the CNCL (Commission Nationale de la Communication et des Libertés), itself replaced in 1989  by the CSA (Conseil Supérieur de l'Audiovisuel) which is now the Regulatory Authority for Audiovisual and Digital Communication (Arcom). This evolution is reflected in practice by a change of the control carried out: since 1993, an a posteriori control has substituted the preventive control of advertising messages, in accordance with the principle of freedom and editorial responsibility of broadcasters .

Under Article 14 of Law No 86-1067 of 30 September 1986, Arcom “performs a control, by all appropriate means, on the subject, content and programming modalities of advertising programs broadcast by audiovisual communication services”. It is therefore responsible for ensuring compliance, by the audiovisual communication services, with the fundamental ethical principles and rules relating to the number and duration of advertising spots, contained in the Law of 30 September 1986 and its implementing decrees, in the agreements concluded with private operators, and in the specifications of public operators. Since the adoption of Ordinance No 2020-1642 transposing the AVMS Directive of 21 December 2020 , video-sharing platform services are now part of the audiovisual services defined in Article 2 of Law 86-1067 .  As such, providers of video sharing platforms  are therefore subject to the control of Arcom, which is also responsible for ensuring that online platform operators  comply with the provisions applicable to the fight against “hate” content .  In case of non-compliance by a publisher or distributor of audiovisual communication services, Arcom may not only punish the offending operator at the end of an adversarial procedure , but also refer the matter on a summary basis to the President of the litigation section of the Council of State, who may, even on his or her own initiative, take any conservatory measure and impose a penalty for the execution of the order . Arcom must give notice to the operator to comply with the obligations imposed on it by the laws and regulations. The formal notices are published by Arcom  . It is only after formal notice to the operator that remains unheeded that the authority can impose a sanction, taking the seriousness of the breaches into account :

-  suspension of the publication, dissemination or distribution of the service(s) of a category of programs, part of the program, or one or more advertising spots for one month at the most;

-  reduction in the duration of the authorization or of the agreement within the limit of one year;

-  withdrawal of the authorization or unilateral termination of the agreement;

When it imposes a financial penalty, Arcom must take into account the benefits derived from the breach  and, if applicable, the rates that would have been applied to the lawful advertising in case of surreptitious advertising . The financial penalty cannot exceed 3% of the pre-tax turnover (5% in case of repeat offences) made during the last financial year calculated over a period of twelve months. When the breach also constitutes a criminal offence, the amount of the financial penalty imposed by Arcom cannot exceed that fixed for the criminal fine .

The decisions of Arcom imposing sanctions may be subject to appeal with full jurisdiction before the Council of State  . Other decisions (recommendations, formal notices, etc.) may be subject to an appeal for abuse of power .

 Law No 82-652 of 29 July 1982, on audiovisual communication, OJ of 30 July 1982, 2431.

 Law No 86-1067 of 30 September 1986 on freedom of communication, called the Léotard Law.

 Law No 86-1067, Art. 42-10. For an application, see Cons. d'Ét., 21 September 1988, LawLex200300001846JBJ, 8 April 1994, LawLex200300003790JBJ.

 See Cons. d'Ét., 26 July 1991, LawLex200300001829JBJ.

 Cons. d'Ét., 18 May 1998, LawLex200300001831JBJ.

 See Cons. d'Ét., 3 July 2000, LawLex200300001772JBJ, having considered that by authorizing television advertising for the websites of businesses belonging to the sectors for which television advertising is prohibited, the CSA had exceeded its powers; 9 February 2004, LawLex200500005749JBJ, having considered that the CSA does not exceed its powers by sending a recommendation to a television channel reminding it of the applicable rules not only as regards surreptitious advertising, but also concerning information to the public on the prices and legislation on gambling.

 Law No 89-25 of 17 January 1989 amending Law No 86-1067 of 30 September 1986, OJ of 18 January 1989, 728

 CSA, 22 December 1992, LawLex201300000302JBJ.

Article 2, Law No 86-1067: (...) "Is considered a video sharing platform service any service that meets the following conditions:

2° The provision of programs or videos created by the user to inform, entertain or educate is the main object of the service itself or of a dissociable part of this service, or represents an essential functionality of the service;

3° The provider of the service does not have editorial responsibility for the content specified in 2°, but determines its organization;

4° The service constitutes an economic activity. 

III.- Personal data of minors collected or generated by providers of video sharing platforms in accordance with 3° of II must not, even after the majority of the interested parties, be used for commercial purposes, such as direct marketing, profiling and behaviorally targeted advertising."

Article 60 , L. 86-1067 "I.-The Regulatory Authority for Audiovisual and Digital Communication shall ensure that providers of video sharing platforms:

1° Take appropriate measures so that the programs, user-created videos and commercial audiovisual communications they provide comply with the provisions of Article 15 of this Law;

2° Comply with the requirements set forth by decree approved by the Council of State with respect to commercial audiovisual communications that they market, sell or organize themselves and take appropriate measures to ensure that these rules are also complied with for commercial audiovisual communications marketed, sold or organized by third parties;

3° Clearly inform users of the existence of these commercial communications within the programs and videos created by users, when such communications have been declared by the users who put them online or when they have knowledge of them.

II - Under conditions defined by the Regulatory Authority for Audiovisual and Digital Communication, the measures, which must be achievable and appropriate, as specified in 1° and 2° of I, consist in particular, as the case may be, of:

1° Including and enforcing compliance with these requirements in the general conditions of use of the service;

2° Providing users with content classification and notification mechanisms;

3° Implementing age verification and parental control mechanisms;

4° Setting up procedures for resolving complaints;

5° Providing for media education and user awareness measures.

Law No 2004-575 on confidence in the digital economy of 21 June 2004, as amended, Art. 6-4: "I.- The online platform operators defined in Article L. 111-7 of the Consumer Code, which offer an online public communication service based on the ranking, referencing or sharing of content posted online by third parties and whose activity on the French territory exceeds a threshold number of connections determined by decree whether or not they are established on French territory, contribute to the fight against the public dissemination of content that contravenes the provisions mentioned in the third paragraph of paragraph 7 of Article 6 of this law, as well as the third and fourth paragraphs of Article 33 of the Law of 29 July 1881 on the freedom of the press.

Law No 86-1067, Article 62. Pursuant to this provision, the online platform operator is liable to a monetary penalty imposed by Arcom, under the terms of Article 42-7, “the amount of which takes into account the seriousness of the breaches and, where applicable, their repeated nature, without exceeding EUR 20 million or 6% of the total annual worldwide turnover for the previous financial year, whichever is higher”.

 Law No 86-1067, Art. 42-7 to 42-15 (for publishers and distributors of audiovisual communication services).

French Consumer Law

108. A posteriori control by the audiovisual regulatory authority

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108. A posteriori control by the audiovisual regulatory authority

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