Digital platforms: the decrees strengthening transparency and loyalty obligations are published

Under the Act for a Digital Republic (loi pour une République Numérique) dated 7 October 2016, three decrees have been signed on 29 September 2017 in order to strengthen the transparency and the loyalty of digital platforms as described in article L. 111-7 of the consumer Code (search engines, market places, intermediation platforms etc.). These new obligations are codified under articles D. 111-7 à D111-19 of the consumer Code.

The platforms have very little time to comply with the provisions of these decrees as two of them are applicable as from 1 January 2018 and the third one is applicable as from 1 January 2019.

If the digital platforms fail to comply with these provisions within the deadline, under the provisions of article L. 131-4 of the Consumer Code they incur an administrative fine that cannot exceed €75.000 for a natural person and €375.000 for a legal person. This penalty is imposed by Directorate-General for Competition, Consumer Affairs and Prevention of Fraud (DGCCRF).

With effect from 1 January 2018, under decree n°2017-1434 of 29 September 2017 on digital platform operators information obligation, platform operators will have to identify the following information in a specific section dedicated to reference, discontinuation and ranking methods, directly and easily accessible on each website page and materialized by a distinctive mention or sign:

-       reference and discontinuation conditions,

-       obligations of offerors sanctioned by discontinuation and the related remedies,

-       default ranking criteria and

-       any possible impact on the provided reference and discontinuation resulting from any contractual relationship, capital links or payment between the operator and the offeror.

In addition, in the event of a contractual relationship, capital link or payment between the platform operator and the referenced offeror, the platform operator will have to specify for each ranking result, close to the offer or the ranked content, the impact of such a relationship.

Furthermore, the ranking criterion used by the platform operator has to clearly appear and be easily accessible on each page of results.

In addition, the online connecting websites have to mention in a section directly and easily accessible from every page of the website, without any prior identification of the user, the information with regard to:

-       quality of the offerors,

-       online connecting service description and the contracts entered into thanks to the provision of the service,

-       online connecting service price,

-       payment methods and management practice,

-        insurances and warranties offered by the operator and

-        dispute resolution methods.

When the operator puts consumers or non-professionals in contact, the platform operator also has to clearly indicate in an understandable way the following information:

-       quality of the offerors depending on their declared status,

-       penalties incurred by the offeror acting as a professional while presenting themselves as a consumer or a non-professional,

-       global price,

-       withdrawal right when intended by the parties or lack of such right,

-       lack of any legal conformity warranty and

-       provisions of the civil Code on contract law and liability applicable to a contractual relationship, by mention of a hyperlink.

With effect from 1 January 2019,under decree n°2017-1436 of 29 September 2017 on information obligations with regard to online consumer opinions, any person in charge collecting, moderating or disseminating online consumer opinions, has to mention next to said opinions any information with regard to the existence or mon-existence of monitoring process, the publication date of each opinion and the applied ranking criteria. Information with regard to the possible existence of any consideration in exchange of opinions and the maximum period for publishing and retaining opinions must be mentioned in a specific section.

Finally, decree n°2017-1435 of 29 September 2017, adopted pursuant to article L. 111-7-1 of the consumer Code provides that as from 1 January 2019, the platforms for which the monthly unique visitor limit (calculated on the basis of the last calendar year) exceeds five million will have to develop and disseminate a guide of the implemented good practice that seek to strengthen clarity, transparency and loyalty obligations to the consumers.

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