On
Tuesday, the Tribunal de Grande Instance of Paris decided on a claim
presented by the French consumer association Que choisir against
Google and challenging the company's practices and contract terms involved
in the (recently discontinued) Google+ service.
The
association challenged Google's Terms of Service and Privacy policy in their
entirety, but also a large number of individual clauses contained
therein.
The
Court analysed these terms in light of consumer legislation, and in particular
unfair terms provisions in the Code de
la consommation, and data protection rules. They also, possibly quite
crucially, relied on a number of provisions in the same Code which dictate the
information which consumers must receive prior to contract conclusion.
Different
types of terms were, in this context, considered as invalid:
1) Terms which described the purpose of data collection in a way that
did not allow the consumer to really understand what their information was
going to be used for
In
particular, the Court condemned certain terms for presenting data collection as
(exclusively) aimed at providing better services, rather than making the
consumer aware of the commercial value and utilisation of the information
collected (see clause 4 privacy policy,
p. 88 of the decision).
2)
Terms concerning geo-localisation
In
this case, the main challenge is that the geo-localisation information
is in no direct connection to the service and takes place through
connecting to information stored by different services. Consumers should,
the decision implies, have the chance to accept or reject this separately. See
Clause 9 Privacy Policy, p. 93.
3)
Terms allowing the provider to change the data concerning certain users, and to
keep a log of old data that a user has sought to rectify
This
is against data protection principles, which put individuals in control of
their personal data after it has been collected. See clause 14 and 17 Privacy
policy, p 98-100.
4)
Terms requiring users to accept that their information may be stored outside of
the EU/EEA, without safeguards
Such
terms are not so much unfair as they are plainly in contrast with mandatory
rules restricting the transmission of data outside of the EEA, except when
provided for by "safe harbour" agreements. See Clause 19 Privacy
Policy, p. 102.
5)
Terms allowing the provider to change their conditions, or to terminate the
provision, without indication on which grounds such measures could be
taken
6)
One of the terms in the Terms of Use was declared invalid for its attempt
at waiving all sort of liabilities without any clear delimitation of the
waiver's reach
7)
Another term, concerning cookies, alerted consumers that "not all
services" could reasonably work without them, but did not give
any indication as to what the specific impact of refusing cookie collection
could be
The
Court considered both the Terms of Use and the Privacy Policy as parts of one
global contractual agreement. Contrary to the association's submissions,
it considered that in itself, the presentation of the two documents was
sufficient to provide users information concerning the nature and scope of what
consumers agree to: in particular, the use of hyperlinks and "fragmentation"
of relevant information is suitable to avoid an excessive concentration of
information in a single text in limited space, the lexicon is sufficiently
informal and it includes a glossary, and the personal nature of the information
processed is sufficiently highlighted.
In
particular to the extent that, such as for geo-localisation, the Court seems to
indicate separate approval - i.e., approval that is not obligatory in order to
get access to the service - Que choisir has commented that the decision marks
an end to "les conditions générales interminables à accepter en bloc".
In some cases, where the terms contested were plainly against data protection
legislation, the decision should also mean that the terms should no more be
employed.
On
the other hand, in so far as transparency was the reason for invalidating many
of the controversial clauses, it will remain to be seen what the practical
consequences of the decision - which, is, furthermore, still subject to appeal
- will be. Interesting times!
(A
PDF copy of the decision, in French, is available on Que Choisir's
website as linked above)
