FACEBOOK CASE: a French experience Amal TALEB UFC – QUE CHOISIR April 21st, 2015

Our legal strategy regarding Facebook Our goal: addressing FACEBOOK (and other social networks) behaviour on consumers’ rights AND Data protection issues. Civil case ? Criminal case ? Administrative action ? -Administrative actions offers partial remedies : -CNIL on data protection -Directorate-General of consumers affairs (DGCCRF) on consumers protection. -Criminal actions are defined by the public prosecutor, and not by the plaintiff… … So we have chosen to address FACEBOOK terms and conditions before a civil court. 2

The French approach to unfair terms and conditions In France, legal actions against unfair and illegal terms are usually brought to the Civil Courts by consumers organisations. The unfairness of a term must be assessed by taking into account all the other terms of the contract. Therefore, legal actions usually address as many terms as possible. The judge may also order the deletion of a contractual term when it is illegal regarding any other piece of legislation. 3

Our approach to FACEBOOK contract We analysed every article within the contract, i.e. the Statements of rights and responsibilities, the Privacy policy, the Community standards. Which legal grounds ? The legal corpus on unfair terms (directive 93/13/EC and L.132-1, R.132-1, R Consumer Code) The French Data Protection act (1978) The code of Intellectual Property 4

Our approach to FACEBOOK company In June 2013, once the legal review of FACEBOOK (and other social networks) terms and conditions was completed, we addressed to Facebook Ireland a critical review of 180 contractual terms in a 97- pages long formal notice. While other social networks entered negotiations, FACEBOOK answered that its Terms and Conditions are compliant with every piece of legislation whatsoever In March 2014, we summoned FACEBOOK before the «Tribunal de grande instance » de Paris, to obtain the deletion of their unfair and illegal terms and conditions. Still in prehearing court sessions, we are awaiting Facebook’s 1 st statement of defense, 5

Our challenges : 1/2 LENGTH !!! Almost each contractual term could be “tackled” using 2 or more statutory basis, yet we decided to limit the number of legal arguments for each term. Even though we highly edited ourselves, we had to send a 141 pages-long summon to FACEBOOK. Following the adoption of Law n° , we had to update the summons to include new legal dispositions, upping the summon to 145 pages. 6

Our challenges : 2/2 CHANGE !!! The legal corpus changed during the case : because new statutory dispositions were enforced, we had to reevaluate all of our legal arguments. FACEBOOK changed its contract after the 2 nd prehearing court session, forcing us into reviewing its contract, and including current terms along with former ones. FACEBOOK may change again its terms and conditions, The European union may adopt the proposed Regulation on data protection … which might imply a new update of our summon ! 7

Our expectations The full deletion of all unfair and illegal terms within FACEBOOK contract. The compliance of FACEBOOK with Consumer law, Data protection legislation (the current Directive 95/46/EC, the Data Protection act and, when adopted, the Regulation on Data protection) and the Code of Intellectual Property. The compliance by other digital companies with these statutes in their terms and conditions. 8

THANK YOU ! If you have any question, feel free to contact me. 9