Promotions that are not, positive opinions on the Internet generated by bots … These violations in commerce, especially online commerce, have been closely regulated in France since Saturday 28 May. The European “Omnibus” directive, which the European Parliament voted on in 2019 and has since been converted into French law, went into effect at the end of the week. Its goal: “to modernize the right to consume in the face of online purchases,” according to attorney Jacqueline Brunlett, a commercial law specialist at CVS Avocat. The law is full of goodwill for consumer rights, but its effectiveness raises questions. Since there is real e-commerce law legislation in Europe, the search for fraudulent actions among the millions of online ads promises to be gigantic.
The first point in the law – perhaps the main hack: to control misleading promotions between sellers. Arnaud Touati, a lawyer who specializes in new technologies, explains: “What some traders do today is they start from a computer that was issued at a price of 1500 euros. And after three months, the price” of the computer went down to 1200 euros. But on Black Friday, dealers will sell it for 1,000 euros, claiming to reduce it by 33%, because it is based on 1,500 euros.” To avoid this kind of scam, the text states that professionals are obligated to take as a reference price for their promotion “the lowest price during the thirty-day period before the reduction A step forward for Jacqueline Brunlett, who confirms: “Until now, we have not had a text that accurately sets the price before the reduction.” Arnaud Touati also notes: “Professional online sellers, such as marketplaces, can also be penalized.”
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But Henri Isaac, a lecturer at the University of Paris-Dauphine and an expert at the Observatory for the Economy of Online Platforms, doubts the effectiveness of such a measure: “On paper, we can only be in favor. But the question is: is there really a reference price today, the price is dynamic. Change Amazon constantly prices its products. And as usual, the regulator is late.”
He continues, “Regularly releasing price data requires a lot of resources. We cannot be sure that the Directorate General of Competition, Consumer Affairs and Fraud Prevention (DGCCRF), which administers the checks, has these resources.” member I think thank you The digital renaissance indicates a lack of resources for the Ministry of Economy. A report from the Senate Finance Committee on the 2022 Finance Bill notes that “since 2007, the DGCCRF’s resources have been reduced by a quarter.” In its 2020 report, the DGCCRF claimed nearly 3,000 agents, examined 20,700 sites, and inspected 94,000 establishments.
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“DGCCRF has created a platform called SignalConso, Nuance Jacqueline Brunlet. This means that DGCCRF agents will not search for fraud at random but will rely on information provided by consumers.” The platform launched in February 2020, and had 50,000 reports by the end of this year.
The tool can also be useful for implementing another key piece of guidance: controlling “false feedback”, which are generally very free comments on a product, but not made by real consumers. “With this provision, the DGCCRF no longer has to prove that false comments have an effect on consumer decision,” Jacqueline Brunlett explains. But here again, Henry Isaac remains skeptical about the scale of the task that a few thousand DGCCRF agents will take on. It must be said that a third of customer reviews on Amazon are wrong. For Henri Isaac, solutions already exist to combat false reviews, such as mentioning “approved purchase” on Amazon. “Will this directive solve the problem any more? I doubt it a bit,” he sighs.
The regulations oblige sellers to certify that the person giving their opinion has bought the product, but for lawyer Arnaud Touati, this is not enough: “Brands can buy low-cost products themselves to put positive reviews.”
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“It’s another paper in Mille Foy.”
Other important measures of the law: the obligation to require consumer consent when the right of withdrawal does not apply to its purchase; prohibition of door-to-door selling when “the consumer clearly and unambiguously declares that he does not want to be the subject of such a visit”; or obligation to indicate any “capital links” between the Online Seller and the Platform. A set of multiple rules, so they appear disparate and difficult to read.
“It is a text that has commendable intentions but fits well with many of the texts relating to protecting users online, acknowledges Jacqueline Brunlett. The game of text gathering makes the rules difficult to read.” To support her point, the lawyer cites the DSA and DMA, two other European projects to regulate online platforms. She smiles: “In a positive way, it’s another stone in the building, and in a negative way, it’s another leaf in Mille Foy.”
Same story on the E-Commerce and Distance Selling Consortium (VIVAD). Marc Levier, Managing Director, explains: “For price cut ads, it’s a novelty that isn’t really the case. Since 1977, we’ve had this rule in France, which was repealed in 2015 across Europe. Now, the law goes back to a pre-year rule. 2015, with a little less flexibility than before. In erroneous reviews, it’s a little similar. In the 2016 Digital Republic Act, France had already regulated this topic. We are continuing, with an extension on a European scale. Marc Lévier confirms, however, that the work of The DGCC will be facilitated by this new law, with clear and harmonized rules at European level.He adds that upward revised penalties – up to 4% of average annual sales volume – will undoubtedly be more deterrent.
But the representative of e-commerce in France has no illusions: “For sites that operate outside Europe, there is a question of real control.” On the issue of false promotions, “the text is relatively short, and we’ll have to work on explaining it,” admits Mark Lelliver. Jacqueline Brunlet concludes: “It is a reinforcement, not a revolution.” One thing is for sure: the slow regulation of e-commerce is not over yet.