Unfair Terms And Personal Data: Twitter Sentenced By A French Court

Author:Ms Anaëlle Idjeri
Profession:Soulier Avocats
 
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By a judgment dated August 7, 2018, the First Instance Court of Paris ruled on the illegal nature - under French Consumer law and the French Data Protection Act of January 6, 1978 - of several clauses included in the various versions of Twitter's Terms of Use, Confidentiality Policy and Rules.

Twitter was ordered to change all of its contractual documentation intended for French users and to make the entire judgment publicly available.

Professionals are now warned: French consumer law provisions must be strictly considered when drafting their general terms of use and confidentiality policies.

Following a remarkably thorough analysis, the First Instance Court of Paris (the "Court") not only held that the Twitter contract was a consumer contract for pecuniary interest (1) and that Twitter ought to be considered as data controller under the French Data Protection Act (2) but it also ruled that 266 clauses included in Twitter's contractual documentation, including those set forth in contracts that are no longer offered to users, were abusive (3).

  1. French consumer law applies to Twitter's contractual documentation

    Twitter claimed that the French Consumer law provisions were inapplicable because the contract to use this social network entered into by users was free of charge.

    As a matter of fact, while the service offered by Twitter to its users has no financial consideration, the Court pointed out that Twitter "sells to partner companies, whether advertising or profit-making companies, personal and non-personal data freely disclosed by users during their registration on the platform and during their use of the service". As such, "the supply of data freely collected and then processed and valued by Twitter must be analyzed as a benefit within the meaning of Article 1107 of the French Civil Code, said benefit constituting the consideration for the benefit that Twitter offers to users, which means that the contract entered into with Twitter is a contract for pecuniary interest".

    Consequently, Twitter can be considered as a professional and the users that share contents as consumers within the meaning of the introductory Article of the French Consumer Code. French consumer law provisions therefore apply.

  2. Twitter considered as data controller within the meaning of the French Data Protection Act

    The plaintiff argued that some of the clauses included in Twitter's contractual documentation were abusive insofar as they introduced a presumption of liability of users and limited, if not waived, Twitter's liability whereas Twitter, as...

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