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Strengthening consumer protection on the Internet (Update Distribution / Competition, Nov. 2020)

Published on : 18/12/2020 18 December Dec 12 2020

Publications et Séminaires

The activities of the European Union in recent months have focused on substantially strengthening the protection and promotion of consumer interests when dealing with e-commerce.

1. Protecting the user's consent when collecting their data on the Internet

The European Court of Justice (ECJ) ruled in a judgment of November 11, 2020 that the consent of Internet users to the use and processing of their data must be active and could not result from a box filed by default on a website. On this occasion, the ECJ also recalled that the stipulations must not mislead the user as to the possibility of concluding the contract even if he refuses to consent to the processing of his data (ECJ, aff. C 673/17). This decision echoes a judgment of October 1st, 2019 according to which the Court also ruled that the active consent of Internet users in terms of the placement of cookies could not result from a box checked by default (ECJ, aff. C-61/19).

2. Protecting the Internet consumers against discrimination and misinformation

The EU legislator has strengthened the obligations of member states in terms of protecting consumer interests and, in order to adapt French law to these reforms, the so called “DDADUE” act has been definitively adopted by the Parliament on November 18, 2020.

• The fight against geoblocking

This text is an opportunity to bring national law into line with Regulation (EU) 2018/302 of February 28, 2018 aimed at countering unjustified geographic blocking and other forms of discrimination based on nationality, place of residence or the place of establishment of customers in the internal market, by introducing into the French Consumer Code provisions aimed at combating these practices at the national level, in particular with regard to consumers in located the French overseas departments and territories by professionals established in metropolis.

• Increased transparency when shopping online

This law also empowers the government to take, in a future ordinance, the legislative measures to implement the provisions of Directive (EU) 2019/2161 of 27 November 2019 which purposes are to :

- impose on marketplaces information obligations towards consumers;
- extend consumer information and protection rules to free digital services (social networks);
- step up the fight against “false opinions” from consumers on platforms;
- frame the price reduction announcements by the need to justify a reference price;
- inform consumers about the application of a personalized price based on an algorithm.

• The new powers of the French Consumer Authority (DGCCRF) in matters of online fraud

In terms of online fraud (such as the marketing of non-compliant or even dangerous products or the development of fraudulent websites), it provides the DGCCRF with new means of action since it can directly:

- order operators of online platforms, internet service providers or persons operating software allowing access to an online interface to display a message warning consumers of the risk of harm incurred when accessing the content manifestly unlawful; and even
- order domain registrars to take measures to block a domain name.

Key Takeaways

Website operators must therefore now adapt the terms of their Personal Data Policy and their Commercial Policy because their e-commerce site:

•   cannot pre-check the box relating to the collection and processing of personal data, nor the one relating to the use of cookies;
•   cannot refuse access to its site for any user located in another Member State (or in a French overseas territory), including by automatically redirecting it to another version of the website, with the name extension domain of the country of residence;
•   cannot refuse any order placed by a user located in another Member State (or in a French overseas territory), for example by requiring a bank domiciliation in the country at the stage of payment, but may not organize the delivery of the order ;
•   must not submit false consumer reviews or recommendations to promote their products, nor manipulate consumer reviews or recommendations, for example by only posting positive reviews and deleting negative reviews;
•   must inform the consumer about the application of a personalized price from an algorithm (e.g.: yield management);
•   must indicate to the consumer the previous price applied before the application of the price reduction;
•   must remain vigilant on the conformity and the lack of dangerousness of the products marketed via the web site

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