FRANCE Law and Practice Contributed by: Marianne Le Moullec, Gaëlle Robic and Joséphine Perrin, Orasis Avocats
Orasis Avocats 17 rue Paul Lelong 75002 Paris France Tel: +33 1 42 36 59 89 Email: contact@orasis-avocats.com Web: www.orasis-avocats.com
1. Legal Framework and Regulatory Bodies 1.1 Primary Laws and Regulation The right to advertise products and services is derived from the freedom of commerce and the freedom of expression, which are both fundamental constitutional rights in France. Unfair commercial practices, including deceptive advertising, are governed in France by various laws, which have been codified in the French Consumer Code. The Consumer Code also contains specific pro - visions on the advertising of financial services, while the Public Health Code sets out the specific rules for advertising tobacco, alcohol, drugs and food. Data protection, including data for marketing uses, is regu - lated by the European GDPR and the 1978 French Act on Data Protection of ( Loi Informatique et Libertés ). 1.2 Enforcement and Regulatory Authorities The main authorities for the enforcement of advertis - ing and marketing laws and regulations in France are: • the Direction Générale de la concurrence, de la consommation et de la répression des fraudes (DGCCRF – the state administration); • the criminal courts; • the Commission Nationale de l’Informatique et des Libertés (CNIL), which is in charge of privacy rules; • the Autorité de régulation de la communication audiovisuelle et numérique (ARCOM) is the audio - visual watchdog; and • the Autorité de régulation professionnelle de la publicité (ARPP) is the professional self-regulatory body.
DGCCRF The DGCCRF is part of the Ministry of Economy and is the main enforcement authority. Its mission is to protect consumers from unfair commercial practices, deception and fraud, and its inspectors have exten - sive powers to conduct investigations. When the DGCCRF considers that an advertisement is decep - tive, it can refer the matter to the public prosecutor, who will bring the action before the criminal court. The DGCCRF may also decide to issue an injunction to end the advertisement, if necessary, under daily pen - alty. The injunction decision may be published online. The DGCCRF may also negotiate a settlement with the infringing company for a transactional fine, which is validated by the public prosecutor. Criminal Courts Unfair commercial practices, such as deceptive advertising, are criminal offences. The public pros - ecutor is informed by the DGCCRF of the results of its investigations, and may bring the matter before the criminal courts. Sanctions for a natural person may be up to two years’ imprisonment and a fine of up to EUR300,000; for a legal person, a fine of up to EUR1.5 million is possible. The amount of the fine may be increased, in proportion to the benefits derived from the offence, to 10% of the average annual turnover, or to 50% of the expenditure incurred in carrying out the advertising or practice constituting the offence. CNIL The CNIL is France’s data protection authority. Its mission is to protect individuals’ privacy and personal data, including when data is used for marketing pur - poses. It ensures that data collection and use comply with the GDPR and the French Act on Data Protec -
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