#IPLaw – Clauses of Twitter general conditions deemed illegal or abusive (FR)

The validation of the general conditions is often done automatically. Thank God, associations of consumers and especially judges ensure the lawfulness and abusiveness of certain clauses not negotiated by “co-contractors”.

The French association Union Fédérale des Consommateurs – QUE CHOISIR (en abrégé UFC – QUE CHOISIR, et ci après UFC) has sued TWITTER (Company TWITTER Inc. (US) and Company TWITTER INTERNATIONAL COMPANY (IE)), before the Court of Grande Instance (TGI) of Paris on March 24, 2014 for many grievances regarding consumers in France, for the purpose of declaring an abusive or illegal nature of 269 clauses of the General Terms of Use and other Disclaimer (GCU) of the TWITTER platform.

the UFC asked, among other things:

• € 1,000,000 for compensation for the non-material damage suffered by the collective interest of consumers;
• € 1,000,000 in compensation for the material damage suffered by the collective interest of consumers;
• € 55,000 under Article 700 CPC (court costs incurred by the party claiming reimbursement).

The decision of the TGI of 7 August 2018 is 236 pages long, and includes several legal points. Those who caught our attention are:

1 °) The 2014 and 2015 versions provided for a presumption of user liability for the published content, exempting TWITTER from its liability.

The TGI considers that “(…) the clause, which provides that the liability will be borne solely by the person who provided the content by fully exonerating the host, is unlawful as contrary to Article 6.I.2 of the law for confidence in the digital economy and abusive within the meaning of Article R. 132-1 6 °) become Article R. 212-1 6 °) of the code of consumption, the clause having the effect of abolishing or reducing the right to compensation for damage suffered by the consumer in the event of the breach by the professional of one of his obligations.“.

This clause has later been adapted to be limited to what is allowed by the country of residence of the user.

2) The 2014 and 2015 versions provided for a license for TWITTER of the content published by the user on the platform, including the right for TWITTER to sublicense.

The TGI considers that “Under the terms of Articles L. 131-2 and L. 131-3 of the same Code, the contracts by which copyright is transmitted must be established in writing, the transmission being subject to the condition that each of the rights transferred is mentioned separately in the deed of assignment and the area of ​​exploitation of the rights assigned is limited in scope and purpose, location and duration.
Article L. 133-2, which became Article L. 211-1 of the Consumer Code, provides that the terms of the contracts offered by the professionals to consumers must be presented and drafted in a clear and comprehensible manner.“.

The clause is considered illegal.

Surprisingly, this clause still seems to hold in the current GCU.

3 °) The GCUs provide for TWITTER, the possibility of unilaterally modifying the GCUs in a discretionary way, (…) without notice
nor justification.

The TGI considers that “by conferring on the company TWITTER the right to unilaterally modify the” TWITTER Rules “, to which the user must submit, without prior information of the user, the clause criticized is unlawful under Articles L. 111-1 and L. 111-2, Article R. 111-2 I and III, now Article R. 111-2 7 °) of the Consumer Code, Articles L. 121-17, L 121-19-2 and R. 111-2 become Articles L. 221-5, L. 221-6, L. 221-7 of the Consumer Code and abusive within the meaning of Article R. 132-2 6 °) become Article R. 212-2 6 °) of the Consumer Code, in that its purpose or effect is to reserve to the professional the right to unilaterally modify the clauses of the contract.“.

The clause is considered illegal.

The GCUs generate today, in most cases, an action of user acceptance, perhaps also as a consequence of the RGPD.

4) Certain clauses limit TWITTER’s responsibility for data security, in that TWITTER “strives to secure such data”.

The TGI considers that “Under Article 34 of the Data Protection Act on the protection of individuals with regard to the processing of personal data, the controller is required to take all necessary precautions, the nature of the data and the risks presented by the processing, to preserve the security of the data and, in particular, to prevent them from being distorted, damaged, or that unauthorized third parties have access to it, the data controller to guarantee a level of security adapted to the risk of the treatment.“.

The clause is considered illegal.

The court finds grossomodo in favor of the UFC, deciding that some of the clauses in question are deemed unwritten and some are unlawful. The court awards € 30,000 for non-pecuniary damage and rejects material damage for lack of justification.

To follow closely …

SOPERYAH IP