The French data protection authority, the CNIL (Commission Nationale de l'Informatique et des Libertés), was invited by the Article 29 Working Party (which brings together all the data protection authorities of the European Union) to take the lead in the analysis of Google's new privacy policy, that took effect on 1 March 2012.
On 16 March 2012, the CNIL sent Google a detailed questionnaire on its new confidentiality rules.
In its questionnaire, the CNIL asks Google 69 questions that are meant to clarify the implications the new confidentiality rules will have on the users of Google, whether these users have accounts, or are not authenticated or are simply passive users of Google services on other sites (publicity, measurement of audiences, etc).
Google's answers are supposed to help the European data protection authorities assess the compliance of Google’s services with European law.
The CNIL asked Google to reply to the questionnaire by 5 April 2012.
On 5 April 2012, Google answered the first 24 questions of the 69 questions asked, indicating to the press that it has negotiated a delay for the rest of its answer with the CNIL.
Read the questionnaire: http://www.cnil.fr/fileadmin/documents/La_CNIL/actualite/questionnaire_to_Google-2012-03-16.pdf
IPIT NEWS FROM FRANCE, by YS Avocats law firm, www.ys-avocats.com
Sunday, 22 April 2012
Facebook's Jurisdictional Clause is Null: the French Courts Have Jurisdiction
Court of Appeal of Pau, 23 March 2012, www.legalis.com
A French user, who considered that Facebook had wrongly closed its Facebook account, brought a case against Facebook before the Civil Court of Bayonne for small cases ("Juridiction de Proximité"), claiming €1500 in damages.
Facebook Inc argued that its general terms and conditions provide that the courts of California entertain exclusive jurisdiction, and that the French courts therefore do not have jurisdiction.
In a judgement of 18 October 2011, the Civil Court of Bayonne ruled that indeed, following Facebook's argument, it did not have jurisdiction. The French Facebook user appealed against this judgement (at this stage only on the issue relating to the jurisdiction).
The Court of Appeal of Pau reversed the judgement and ruled that the French courts have jurisdiction, on the grounds of section 48 of the French Code of civil procedure which provides that:
“Any clause that departs, directly or indirectly, from the rules of territorial jurisdiction will be deemed non-existent unless it has been agreed between parties to a contract entered into as merchants and the same has been provided for in an explicit manner in the undertakings of the party against whom it will be enforced“.
A jurisdictional clause must therefore satisfy two cumulative conditions:
- the parties have to be merchants (and therefore not consumers),
- the clause must be presented in a very explicit manner, i.e. not written in small print and lost in a long contract.
In the present case, the Court of Appeal did not refer to the fact that the Facebook user was not a merchant, but insisted on the fact that the clause was written in English, in very small print, and that the user merely clicks to accept very long and involved terms and conditions.
Facebook has since translated its terms and conditions into French. Nevertheless, it is not certain that the jurisdictional clause is presented to the users in a sufficiently “explicit manner”.
Moreover, since the users of Facebook are mostly consumers, it does not seem that the jurisdictional clause, which gives exclusive jurisdiction to the Californian courts, will necessarily be valid. Nevertheless, not all Facebook users can be considered as consumers under French law, as many firms now use Facebook for corporate communications.
Read the case: http://www.legalis.net/spip.php?page=jurisprudence-decision&id_article=3382
A French user, who considered that Facebook had wrongly closed its Facebook account, brought a case against Facebook before the Civil Court of Bayonne for small cases ("Juridiction de Proximité"), claiming €1500 in damages.
Facebook Inc argued that its general terms and conditions provide that the courts of California entertain exclusive jurisdiction, and that the French courts therefore do not have jurisdiction.
In a judgement of 18 October 2011, the Civil Court of Bayonne ruled that indeed, following Facebook's argument, it did not have jurisdiction. The French Facebook user appealed against this judgement (at this stage only on the issue relating to the jurisdiction).
The Court of Appeal of Pau reversed the judgement and ruled that the French courts have jurisdiction, on the grounds of section 48 of the French Code of civil procedure which provides that:
“Any clause that departs, directly or indirectly, from the rules of territorial jurisdiction will be deemed non-existent unless it has been agreed between parties to a contract entered into as merchants and the same has been provided for in an explicit manner in the undertakings of the party against whom it will be enforced“.
A jurisdictional clause must therefore satisfy two cumulative conditions:
- the parties have to be merchants (and therefore not consumers),
- the clause must be presented in a very explicit manner, i.e. not written in small print and lost in a long contract.
In the present case, the Court of Appeal did not refer to the fact that the Facebook user was not a merchant, but insisted on the fact that the clause was written in English, in very small print, and that the user merely clicks to accept very long and involved terms and conditions.
Facebook has since translated its terms and conditions into French. Nevertheless, it is not certain that the jurisdictional clause is presented to the users in a sufficiently “explicit manner”.
Moreover, since the users of Facebook are mostly consumers, it does not seem that the jurisdictional clause, which gives exclusive jurisdiction to the Californian courts, will necessarily be valid. Nevertheless, not all Facebook users can be considered as consumers under French law, as many firms now use Facebook for corporate communications.
Read the case: http://www.legalis.net/spip.php?page=jurisprudence-decision&id_article=3382
Saturday, 28 August 2010
Ebay v Hermès: Ebay Liable For Trade Mark Infringement
Court of Appeal of Reims, 20 July 2010, www.legalis.net
Hosting providers (e.g. YouTube) enjoy a limitation of liability system, under the Directive on Electronic Commerce and the French Act on Confidence in the Digital Economy of June 21, 2004 (Loi pour la Confiance dans l’Economie Numérique, “LCEN”).
However, the Court of Appeal of Reims, in a decision of 20 July 2010, considered that Ebay acts as a “publisher of services”, and not a mere hosting provider with solely a technical and passive role, because in the present case it incited users to buy other products, in particular in a section called “purchase suggestion”. In addition, the Court took into consideration the fact that Ebay receives a percentage of the price paid for the product.
The Court therefore condemned Ebay for infringing on Hermès’ trade mark by allowing a user of the site to sell the counterfeit handbags, and presenting them in an attractive manner.
BRAD SPITZ
Hosting providers (e.g. YouTube) enjoy a limitation of liability system, under the Directive on Electronic Commerce and the French Act on Confidence in the Digital Economy of June 21, 2004 (Loi pour la Confiance dans l’Economie Numérique, “LCEN”).
However, the Court of Appeal of Reims, in a decision of 20 July 2010, considered that Ebay acts as a “publisher of services”, and not a mere hosting provider with solely a technical and passive role, because in the present case it incited users to buy other products, in particular in a section called “purchase suggestion”. In addition, the Court took into consideration the fact that Ebay receives a percentage of the price paid for the product.
The Court therefore condemned Ebay for infringing on Hermès’ trade mark by allowing a user of the site to sell the counterfeit handbags, and presenting them in an attractive manner.
BRAD SPITZ
Ebay v Hermès: Ebay condamnée pour contrefaçon de marque
Cour d’Appel de Reims, 20 juillet 2010, www.legalis.net
Les prestataires d’hébergement, tels que YouTube par exemple, bénéficient d’un régime de limitation de responsabilité, en application de la Directive sur le commerce électronique et la Loi sur Confiance dans l’Economie Numérique du 21 juin 2004 (dite loi LCEN).
La Cour d’appel de Reims a toutefois estimé, dans un arrêt du 20 juillet 2010, qu’Ebay agit comme un éditeur de services, et non comme un simple prestataire d’hébergement ayant un rôle uniquement technique et passif, lorsque le site incite ses utilisateurs à achter d’autres produits (notamment avec sa rubrique « suggestion d’achat »). La Cour a également pris en considération le fait qu’Ebay reçoit un pourcentage du prix des ventes.
La Cour condamne ainsi Ebay pour contrefaçon de la marque Hermès, Ebay ayant permis à un utilisateur du site de vendre des sacs contrefaisants et de les présenter de manière attractive.
BRAD SPITZ
Saturday, 14 August 2010
The Long Lasting Exclusivity in Recording Agreements
Cour de cassation (1st Civil Chamber), 11 February 2010, RDLI n° 61, S. Pessina Dassonville
The radio broadcaster Europe 1 had made live recordings of the late French artists Barbara and Joe Dassin for a show. At the time of the recordings, the artists were bound by exclusive recording agreements (with Universal Music and Sony BMG), which provided that they were not allowed to record with any other record producer during the term of the agreement.
Therefore, except if otherwise provided for by contract (with the record producers), Europe 1 could only have non-exclusive right limited to the primary destination of the said recordings: that is to say broadcasting.
Europe 1 however authorised licensees to exploit these recordings in the form of records. The exclusive producers therefore successively asked the court to condemn Europe 1 and the companies that exploited the recordings under a licence, not on the grounds of copyright infringement (Universal Music and Sony BMG do not have any intellectual property rights in the recordings produced by Europe 1), but on the grounds of unfair competition (i.e. tort).
BRAD SPITZ
www.bradspitz.com
The radio broadcaster Europe 1 had made live recordings of the late French artists Barbara and Joe Dassin for a show. At the time of the recordings, the artists were bound by exclusive recording agreements (with Universal Music and Sony BMG), which provided that they were not allowed to record with any other record producer during the term of the agreement.
Therefore, except if otherwise provided for by contract (with the record producers), Europe 1 could only have non-exclusive right limited to the primary destination of the said recordings: that is to say broadcasting.
Europe 1 however authorised licensees to exploit these recordings in the form of records. The exclusive producers therefore successively asked the court to condemn Europe 1 and the companies that exploited the recordings under a licence, not on the grounds of copyright infringement (Universal Music and Sony BMG do not have any intellectual property rights in the recordings produced by Europe 1), but on the grounds of unfair competition (i.e. tort).
BRAD SPITZ
www.bradspitz.com
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