clauses that may be abusive for consumers

On the occasion of the publication on 9 may last of its activity report for the year 2007 (1), the unfair terms Commission recalls that she has especially devoted its work to the review of contracts "triple play" relating to the services grouped of the Internet, telephone and television, offered by ISPs. Specifying that it is not stigmatising the professionals of this sector of activity, the commission, which was to make recommendations for the amendment, or deletion, clauses that may be abusive for consumers, observed "the growing share of the unlawful nature of the terms" contained in contracts "triple play".

This report, which its main recommendations of 2003-2007 relating to the contracts proposed by ISPs (2), advocated including the Elimination of clauses exempting the professional from liability in the event of impossibility of access to the service and those limiting the obligation of providing access to a simple obligation of means. If these recommendations are not binding, they are most often followed by the courts, as evidenced by the November 8, 2007 judgment of the Court of cassation in a dispute between the association UFC-Que choose the vendor to access AOL. The association for the defence of consumers had assigned the ISP to obtain the removal of abusive considered clauses in the contracts offered by AOL, in particular a clause releasing liability in case of interruption or non-functioning of the service.

The highest French Court confirms the abusive nature of such a clause, which has the effect of relieving AOL of its essential duty, rightly called "of obligation of result", effectively ensuring the access to the promised service. In so doing, the Court part of marble from French law the recommendation of the commission, thus adding a new stone building that is the legal framework for access providers.

Duty of filtering

A judgment of the Court of cassation on 19 June 2008 continued this jurisprudential construction, with a duty of filtering (3) the responsibility of the ISP. In this case, the Court granted requests from various associations to combat racism and anti-Semitism sought from more than a decade of service providers to implement all measures to interrupt access to the contents of a negationist website. The decision specifies that the limitation of these filtering measures is not dependent on the mis en cause discovery of hosts, in application of article 6 - 8 of the Act on confidence in the so-called digital economy "lcen" (4).

In practice, this means that anyone with a legitimate interest may, with leave of the judge, obtain all of the ISP that they prevent access to an online communication service. Finally, it is Parliament which has just impose new obligations on service providers through the Act, "Chatel" in force since June 1, 2008 (5), which strengthens the protection of consumers, including free wait for so-called "forced" calls (hot-lines, claims and after sale services) and developments with regard to the duration of contracts and conditions of termination.

New constraints

Service providers are thus brought to integrate the new constraints laid down by three major legal actors: the Commission on unfair terms, the Court of cassation and the legislature. A triple challenge to the "triple play" in his sense first, refers to a game of baseball action, in which the defence manages to eliminate three opponents at the same time...

If the willingness and ability of the suppliers of the offers "triple play" to adapt their contracts and their services for the benefit of their customers is no doubt, they can however blame Mark Twain to have one day wrote: "the game, it is all done without there having."