FRANCE
By Pascale Gelly

Consumer group challenges Amazon.fr terms and conditions

Consumers have found their white knight for personal data protection in the consumer association UFC Que Choisir, which went on a crusade against the terms and conditions of Amazon.fr.

The Court of First Instance of Paris found that the Amazon.fr site included 18 “improper or unlawful” clauses in its terms and conditions, which were therefore held unenforceable.
Several of these provisions related to the processing of personal data. In particular, a provision by which Amazon.fr could share personal data with Amazon.com Inc. and its affiliates was determined to be unconscionable under the French Consumer Code. The Court determined that the provision created an imbalance between the rights and obligations of the contracting parties, as the sharing of personal data with undetermined affiliates is imposed upon the consumer without specification of the contemplated purpose and usefulness of the sharing.
The following clauses were also considered in violation of the French Consumer Code:

• a clause authorizing Amazon to send offers on behalf of other companies. (Solicitation based on opt-out is authorized only if made by the selling entity.);
• a clause providing that Amazon may disclose personal data if disclosure is necessary to perform or enforce sales terms and conditions of any other agreement, or to protect the rights of Amazon or of third parties. (The terms “any other agreement” and “third parties” were considered imprecise.);
• a clause authorizing Amazon to send commercial offers in co-branding or partnership with a third party; (Contrary to what Amazon pretended, co-branding cannot benefit from the opt-out exception for e-mail marketing.).

Thus, the Court required Amazon to pay to UFC 30.000 in damages and ordered the removal of the illegal clauses from Amazon.fr terms and conditions within one month.

Web sites’ terms and conditions are currently under scrutiny at the government administration level. A decree which will publish a blacklist of clauses considered illegal and a grey list of clauses presumed abusive is expected soon.