French Digital Law: A Comprehensive Primer

palace of justice

For the past four years, I’ve lived in Paris, France. The city of light remains one of the most famous places in the world. While the history might be long, and the ages of the monuments approach four digits, there is a bustle here, and it’s a bustle of modern entrepreneurship. France is the 20th largest country in the world with a population of over 67 million. And it punches above its weight: it’s the 6th largest economy in the world, with a GDP of almost $3 trillion. Any international business looking to conquer the world will have to come through here.

As an American, I have had to strip away my assumptions, particularly when it comes to business. The French have different values, different expectations, and a very different approach to life in general. Yes, there are baguettes everywhere. No, no one wears red berets. But one of the biggest cultural differences is reflected in the legal system. Consumers are much, much more protected than in the United States. There are systems of control in place that American and other international companies are not used to. Many of these laws are counter-intuitive or have nuances that make navigating the legal system challenging.

In order to gain an understanding of what to expect when doing digital business in France, here is a comprehensive breakdown of the French digital legal system. This list is not exhaustive and should not be taken as literal legal advice. It serves only as an outline to give international business developers a baseline understanding of the French legal environment. It should help you identify problematic areas to further investigate before you launch.

Domain Names

Anyone familiar with digital business in general knows ICANN, the association that manages domain names. Europe has another body responsible for the .eu domain names called EURID. Both ICANN and EURID don’t have any sort of verification systems in place to prevent conflicts between brands and the domain names of websites. It’s a first come, first served basis for registration. Problems have to be moderated after the fact if there is infringement on a registered brand or trademark.

France has its own organization, AFNIC, which regulates the .fr domain names. AFNIC does have a system of verification that will block people from registering .fr domain names if they are too close to registered or famous brands.

It’s also important to note what a “French site” legally means. Any site with a .fr domain name is a French site. So is any site that is run by a French company or person and is aimed at the French public, no matter what the domain name is, or where their servers or operations are based. These sites are subject to French digital laws. Other websites that are not from French companies and that don’t adopt the .fr domain name and but are still aimed at the French public are generally not considered “French sites” and therefore have more leeway when it comes to following French digital laws.

Domain Name Conflict Resolution

France takes cybersquatting seriously. Cybersquatting is defined as registering or using a domain name with the intent to profit from the notoriety of the name or to resell the name to another for an elevated price. This constitutes a crime which can be penalized by fines, jail time, and damages.

But sometimes two companies have the same name, so what happens when two companies want to claim the same domain name?

If the two companies operate in the same industry, with similar commercial goals, if one of the brands in question has a much longer history and notoriety, it’s going to be able to reclaim the domain name. If the two entities have the same name but operate with different purposes, it’s first come, first served. It’s important to remember that a registered brand is protected for 10 years in France. But that can drop to 5 years if the company is no longer active.

The same logic applies to domain names that are .fr, .com, .eu, or other. If the two conflicting parties operate in the same industry, the more established brand will win. If they share the same name but have different activities, they will have to enter negotiation.

If you run into this problem, you will have to follow the PARL procedure which is run by AFNIC. In this case, the AFNIC will propose a solution and each party has 10 days to contest. It’s very important to note: silence equals acceptance, so there is no possibility to prolong the proceedings by dragging your feet.

Copyright

In France, there is one primary factor that determines whether something is protected by copyright: it’s artistic quality. If something is deemed artistic it’s protected. If something is not deemed artistic, it is not protected. As you can imagine, this is an extremely subjective determination. Arguments can nearly always be made for why something is artistic, which is why you have to be careful. On the other hand, certain commercial elements, like the photo of a chair for an e-commerce site, is probably not protected, even if the chair itself might be considered artistic, the photo might not be.

If you want to use elements from other sites, or elements of brands or protected content, there are three levels of authorization:

  1. Reproduction: If you want to copy something, technically you need an authorization from the creator. Of course, if you copy something for private use, there will rarely be any sort of problem. But every time that you “Save Image As…” from a website, you reproducing protected content.
  2. Diffusion: If you want to re-use something that is destined towards the public domain, you need to obtain the authorization of diffusion. According to the law, this includes when you share protected content to social networks if those pages are destined towards the public (normally speaking this is not your personal Facebook network since that falls under “private use.” But your Twitter network made up of an audience that you don’t know personally could fall under the category of diffusion.)
  3. Exploitation: If you want to use any content for the purpose of profit, such as translations or adaptations, you need the third authorization of exploitation.

In France, copyright extends for 75 years after the death of the creator for artistic content. Software programs are protected for 25 years after their creation.

Where French law gets a little trickier is the area of image rights. If you want to use the image of a person, whether it’s a photo or video, you need an authorization from that person. The exceptions for this rule are when the image is used for news, if the image is taken of the person participating in a demonstration or other public event, or if the image comes from the cadre of their job.

However, this does not extend to public places. You cannot take and use a photo of someone just because they are in a public place. In France, there is a very high respect for the private life. If you want to use the image of anyone, it’s best to verify and get an authorisation unless it clearly falls into one of the situations noted above. Things that are always off limits include sentimental information (what you like, who you love), anything that happens inside a private residence, and anything that relates to your health.

If you find that someone in France is using an image of you in an unauthorized manner, you might qualify for damages and interest. You have to contact the site to get them to remove the image. If they don’t respond you must contact the server, and finally if you cannot get the image removed, you have to contact the ISP (internet service provider) to block that site from being accessible in France.

international law

Managing information

In France, there are two types of information: nominative and sensitive. Nominative is any piece of information that helps to identify who you are, such as your name or age. Sensitive information is much more personal, such as your ethnicity or sexual orientation. It’s illegal to collect sensitive information from people for the purpose of your website. The only exception is if the sensitive information is a requirement of the community of the site, such as a website for a specific religious group. If there is no correlation between the purpose of the site and sensitive information, even asking to collect that information can get you into trouble.

Information can be kept by a website in a database for a period of three years, after which the information must be opted-in again, such as the re-utilization of a service, or with an explicit message. If an account is inactive, all information must be deleted from your database after three years.

When collecting people’s information, your website must indicate which entry fields are required. You must also specify if you will use your users’ names for any purpose in your terms and conditions. Websites also have to declare to the user if the site uses cookies, and you will have to explain (in French) what cookies are.

Security

If you are collecting people’s information, there are certain requirements that must be met in protecting that information. You must ensure that your servers are protected from intrusion, either physical or virtual, as well as keeping that information away from third parties unless the purpose of the information collection is to resell it later (and that is clearly stated to the users).

The EU shares France’s stance on protection of information and privacy. This is in stark contrast to American laws or other havens where there is little to no protection for consumer information.

Online advertising

France has many special laws that apply to advertising. For example, any content that is mixed with editorial content must be clearly marked as an advertisement. Television shows have a small trailer to announce when a commercial break is happening. Online advertising is subject to the same laws.

In France, an advertisement in another language (usually English) must have a translation into French contained in the same ad. This usually takes the form of an asterisk and a translation in the bottom corner. Any false or misleading advertising is illegal as well.

A quick note on Adwords: if you are trying to buy a keyword that is the same word as a registered brand, Google has the obligation to block your bidding in order to protect the brand. You must acquire an explicit authorization from the brand in order to use that keyword.

Another strange case is that “hidden” advertising is also forbidden. This is increasingly important for the new category of influencer marketing. Influencer marketing tries to engage influential social media figures into talking about (or promoting) a brand. If any company pays a blogger for exposure, the content produced must be labeled as an advertisement. It’s different than journalists who receive products because those products are either expected to be returned or are given with no expectation of what will be written about them. But as soon as someone is paid for a positive review, it must be labeled for what it is.

Emailing

Consumers have the right to opt-in to email newsletters. B2C companies do not have the right to send out a newsletter without the opt-in. A first email can be sent asking if a consumer would like to opt-in, but if they don’t, the contact via email must stop there.

There are many exceptions to this rule, and as you know, email is highly abused. This is for a number of reasons. First, foreign sites don’t follow these rules. Second, if there is a contractual link between the sender and the consumer, the company has a right to email them. Finally, in the B2B environment, it is completely legal to buy email lists and send out unsolicited emails.

Even though it might seem like it’s not enforced, if you are caught sending unrequested emails to consumers, you could face a fine of 750 euro per email sent!

Digital Contracts

For someone to enter into a valid digital contract, there must be a double click, or a series of windows that ask if someone is certain. You’ve seen this when you make a purchase. It usually takes the form of a recap of an order. Once someone validates the double click, a company is required to send an email that explains the order or request. You must also give the consumer the option to print the order confirmation page. Any physical goods that are purchased must come with a physical order confirmation, which usually comes with the delivery of a product. Your website must display a contact phone number or email in case of problems.

In France, secure payment systems are not a requirement. If you have a problem with an order, such as a lost package, any sort of fraud, or just a bad company that doesn’t want to deliver, you must first go to your bank within 60 days. Your bank then has 30 days to refund your money plus any other costs associated with the order, such as shipping.

Unless it is specified on the website at the time of the order, the period of delivery is set to a default of 30 days. If you have a problem with a product that you ordered online, you have 14 days to redress the problem starting from the date of delivery. If the return policy is not specified on the website, the consumer might be responsible for paying the shipping to return a product.

There are certain categories of products that do not have an automatic return policy. Items like services, food, digital media, and travel packages usually have a no-return policy, and are not protected by law.

A very important point for e-commerce managers is to understand that a website is responsible for all of its suppliers. Meaning that if a site sells a product, the site is responsible for the sale and any problems that arise from it, including their means of production, shipping, etc.

Resolving litigations

As I mentioned above the in the copyright section, there is a hierarchy when it comes to redressing legal issues. Let’s look at an example of a website that has published offending or false content about someone.

  1. The author: whoever is causing the problem. The first recourse is to try to contact this person. Sometimes, offending sites are protected by anonymity. But their information is held by WHOIS, and the plaintiff can request a lifting of anonymity to find out who is behind a problem.
  2. The editor/content manager: if the author cannot be contacted directly, trying to contact the site where it is hosted is the next step. Content managers are legally responsible for the content of their sites.
  3. The server: if no one from the site can be contacted, the request goes to the company that offers the server space. The server can cut access to the offending contact. But sometimes, the servers are hosted in havens where you can respect absolutely no response. If that happens, you go to the last resort:
  4. Internet Service Provider: if you can’t get the content taken offline in general, you can get the content blocked in France. Obviously, this is a huge pain, but it’s the last resort in order to limit damages in France.

Due to the international nature of the web, this process can be extremely complicated and often fruitless. A judge in France determines that an infraction has occurred and a foreign plaintiff needs to pay damage and interest. That ruling is only valid in France (and usually is applicable in the EU too). In order to get the plaintiff to pay up, a judge needs to obtain homologation wherein a judge in the other country agrees to apply the ruling according to the domestic laws. This is only likely to happen in a country with similar internet laws and nearly impossible for countries with less strict laws such as the United States.

Conclusion

France’s size and position as an innovative, digital country make it a necessary part of any international expansion strategy. But remember: the law errs on the side of the consumer, and many standard internet protocols do not uniformly apply. This is especially true for American companies. So before you launch into the refined world of baguettes, crêpes, and salted butter, make sure to cover all your legal bases.

Bon courage!  

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s