29 August 2003

Sandrine Rambaud

On January 31, 2003, the French Commission on Unfair Terms published recommendations related to contracts concluded between consumers and Internet Access Providers ("IAPs").

Under French Law, the clauses included in a contract between a professional and a consumer (any non-professional entity), which aim to create or result in the creation of a significant imbalance between the rights and obligations of the parties, to the detriment of the consumer, are classed as unfair (section L.132.1 of the French Consumer Code).

Such unfair terms are deemed to be null and void. The responsibility of the Commission on Unfair Terms included finding out whether or not standard agreements contain terms of an unfair or abusive nature. The recommendations drafted by the Commission on Unfair Terms are not binding, but as a rule, the French Courts will follow these recommendations.

Accordingly, the following clauses are deemed unfair when included in contracts pursuant to which internet access is provided with or without charge:

  1. Specific Jurisdiction Clauses (but currently in France, such clauses are prohibited in a contract with a consumer);
  2. Clauses providing that on-line general terms and conditions supersede printed general terms and conditions, even though the consumer has not accepted these general terms;
  3. Clauses obliging the consumer, under threat of contractual sanctions, to respect the rules developed by the Internet Users Community, if the consumer has not accepted the content of these rules;
  4. Clauses which delay the time period where the customer is released from their liability in the event of non-authorised use of the service by a third party. The time period should start from the receipt of the letter sent by the customer to the IAP informing the IAP that their login or password has been lost or stolen;
  5. Clauses reserving the IAP's right to ask the customer at any time to change the name or pseudonym they have chosen to compose their e-mail address. This does not affect the IAP's right to limit the above in cases of initial unavailability, breach of the public policy or infringement of third party rights;
  6. Clauses limiting to a very short time, the period in which a customer may rely on his rights, when a IAP is in breach;
  7. Clauses seeking to exclude or excessively limit the liability of the IAP when an IAP is in breach;
  8. Clauses giving wide definitions of Force Majeure in an effort to exclude the liability of the IAP; and
  9. Clauses, causing the customer to bear all damages that the IAP could be charged with by third parties, and the fees paid for his defence.

According to the Commission, the following clauses are unfair when included in contracts pursuant to which Internet access is provided for a charge:

  1. Clauses authorising the IAP to modify the services as defined in the contract during the performance of it, without the customer's express consent (except as stipulated in section R.132.2 of the French Consumer Code which allows the IAP to modify the technical aspects of the service, provided that there is no resultant price increase or alteration in quality of the service, and that the clause reserves the right for the consumer to confirm the characteristics to which his consent is subject);
  2. Clauses authorising the IAP to modify the tariff in a contract with a determined term, without the customer's express consent;
  3. Clauses allowing the IAP to terminate a contract with an undetermined term if the customer does not accept a price increase and which does not provide that the previous price will remain until the effective termination;
  4. Clauses allowing the IAP to disclose its customer's personal data to third parties without providing the customer with a right to object;
  5. Clauses compelling the customer to maintain a minimum percentage of their connection from an identifiable phone number;
  6. Clauses providing that all the obligations of the provider are "obligation of means" ("obligations de moyens"). This means that in order to claim damages from the IAP for the breach, the consumer must first prove that the IAP did not use their best efforts;
  7. Clauses allowing the IAP to stop the supply of services in the event of breakdown;
  8. Clauses enabling the IAP to terminate the contract in the event of a breach by the customer, unless the customer has an equivalent right for a breach by the IAP;
  9. Clauses enabling the IAP to terminate the contract if the customer does not comply with an inaccurate obligation or the customer does not pay a disputed payment;
  10. Clauses providing that the contract may only be terminated by the customer in the event of long-lasting Force Majeure events;
  11. Clauses providing that in the event of termination, the sums paid in advance will not be refunded to the customer, even when the IAP is in breach or prior notice has been given;
  12. Clauses stipulating that the only remedy available to the customer who is not satisfied with the services or who questions the invoicing, is termination;
  13. Clauses compelling the customer to pay penalties and damages to the IAP in the event of termination due to a breach by the customer;
  14. Clauses authorising the customer to terminate a contract with a determined for an additional charge, without allowing the customer to terminate the contract free of charge on legitimate grounds;
  15. Clauses stipulating a sole mode of payment;
  16. Clauses stating that only electronic invoices sent by the IAP are proof of the services provided, and preventing the customer from questioning this invoicing by using alternative evidence; and
  17. Clauses compelling the customer to collect their electronic mails within too short a period, particularly considering that those electronic mails are enforceable against the consumer even if he has not collected them.

Regarding contracts pursuant to which Internet access is provided through the cable network of the IAP, the following clauses are unfair:

  1. Clauses enabling the IAP to automatically terminate the contract, if the connection period is not maintained because of the fault of the IAP;
  2. Clauses pursuant to which the consumer must bear evidence that he is not liable for damaging the rented device, without also mentioning that this excludes damage resulting from a defective device.

Conclusion: Many clauses included in standard contracts proposed by Internet Access Providers may be considered null and void by the French Courts. Therefore, it is highly recommended that Internet Access Providers who wish to conclude contracts with customers, review their standard contracts, taking into account the recommendations given above.