March 29, 2016
France is on the verge of adopting a new "bill for a Digital Republic" which will significantly impact the French digital economy. Foreign service providers directing their services to French consumers will also likely be impacted. The bill aims at strengthening consumer confidence in the internet. It is meant also to increase competition between service providers by lowering entry barriers.
The upcoming reform goes well beyond existing and forthcoming EU legislation. It significantly expands consumers’ right to data portability; it imposes stringent disclosure duties on online referring/ranking platforms as well as on websites collecting or disseminating consumers’ opinions. Now that the bill has been adopted by the French National Assembly, it will be discussed, in April 2016, at the French Senate. Its enactment should follow shortly. The French bill will, however, eventually, need to comply with EU rules including in the area of Internal Market and the results of the European Commission Single Digital Market Agenda.
Data portability grants to the data subject the right to receive the personal data he or she has provided to a controller and to transmit those data to another controller without hindrance.
The French draft bill significantly broadens the application of this principle by expanding the scope of data subject to the right of recovery. Data will not be limited to personal data but will include:
- "all files posted online by the consumer";
- "all data resulting from the use of the consumer’s account . . ."; and
- "other data associated with the consumer’s account the recovery of which is relevant to change supplier within a given industry".
Consumers will, thus, be able to request, through recovery, the portability of all data (and not only personal data in the strictest sense), including pictures, music, bank account statements, content, etc., that they have posted online (including if stored in a cloud). More importantly, recovery will cover data resulting from the consumer’s use and consumption of files he or she has posted. For the French government, this new legislative measure will enable the portability of, among other data, playlists, preference lists, history of orders on an ecommerce website, etc. It has been presented by the French government as a mean to facilitate the entry of new competitors, while preserving intellectual property rights of existing service/application developers.
The draft bill contains other important legislative developments, including with respect to payment by way of electronic money.
Discussions at and amendments, if any, by the French Senate to the draft "bill for a Digital Republic" will need to be closely monitored to assess the effective impact of the new law and the extent to which French and foreign internet service providers will need to adapt their practices.
 Article 18.2 of the proposal provides that "The data subject shall have the right to receive the personal data concerning him or her, which he or she has provided to a controller, in a structured and commonly used and machine-readable format and have the right to transmit those data to another controller without hindrance from the controller to which the data have been provided . . ."
Gibson, Dunn & Crutcher’s lawyers are available to assist in addressing any questions you may have regarding the above developments. Please contact the Gibson Dunn lawyer with whom you usually work, or the authors:
Benoît Fleury – Paris (+331 56 43 13 00, firstname.lastname@example.org)
Andrés Font Galarza– Brussels (+32 2 554 72 30, email@example.com)
Alexander H. Southwell – New York (+1 212-351-3981, firstname.lastname@example.org)
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