French Bill for a Digital Republic

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[1] and forthcoming[2] 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.

• Right to recovery and data portability.  EU discussions are currently focusing on reinforcing data protection rights of individuals and facilitating the free flow of personal data in the digital single market.  In this context, portability of personal data[3] should be enacted. 

  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.

• Neutrality of platforms.  The French draft bill imposes on online platforms referring or ranking third-party content, goods or products (including, price comparators, ecommerce sites and market places) a new far reaching duty.  "Loyal, clear and transparent" information will be made available to consumers, including information regarding the modalities pursuant to which goods, services and content are referenced, ranked or dereferenced.  In addition, platform operators will be required to specifically disclose (i) contracts with clauses pertaining to the ranking of goods, services or content, (ii) share capital relationship which influences the platform’s rankings, and (iii) any direct compensation received from companies referenced by the platform and how it impacts rankings.
• Loyalty of advice.  Finally, the draft bill imposes on all persons the business of which consists in collecting, moderating or disclosing online opinions/advices from consumers a duty to deliver "loyal, clear and transparent" information with respect to the supervision, if any, exercised over these opinions/advices. 

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.

   [1]   Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 on the neutrality of internet and measures concerning open internet access.

   [2]   January 28, 2016 proposal for a new EU regulation on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

   [3]   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 . . ."