FRANCE Law and Practice Contributed by: Marianne Le Moullec, Gaëlle Robic and Joséphine Perrin, Orasis Avocats
tion. The CNIL has the power to investigate, to issue injunctions and to fine entities that violate the rules. ARCOM The ARCOM is an independent administrative body in charge of the regulation of the audiovisual media. Its mission includes promoting major social values in audiovisual media, such as the protection of minors, respect for women’s rights, combatting discrimination, balanced representation of French society, accessibil - ity and disability, and the defence and promotion of the French language. The ARCOM may act against media if audiovisual programmes, including advertis - ing, do not comply with such values. ARPP The ARPP is the French advertising self-regulatory authority. Its mission is to maintain high standards of truthful and ethical advertising, while safeguarding freedom of expression and creativity. 1.3 Liability for Deceptive Advertising Criminal Liability Deceptive advertising is a criminal offence under French law. Both natural persons (eg, the head of the company or a person with delegated authority) and legal persons (ie, the company itself) may be prose - cuted and held criminally liable for deceptive advertis - ing. Criminal liability is personal, so the criminal court will seek to determine each person’s actual personal liability in the creation and broadcast of the deceptive advertisement. The advertiser is the most likely to be held liable for deceptive advertising, but other persons may be held liable as well, depending on the factual circumstances of the matter – eg, the media/publisher, the adverting agency and the influencer could also be held liable as co-authors or as accomplices to the criminal offence. Civil Liability A competitor could bring a civil tort action for decep - tive advertising against the advertiser. As a violation of the law, deceptive advertisement necessarily gives the perpetrator a competitive advantage, which is considered in itself as an act of unfair competition by French tort law. Consumers and consumers’ associa - tions may also bring civil action against advertisers
or any other persons breaching the law on deceptive advertising. 1.4 What Is Advertising? French consumer law uses the term “commercial practices”, which is defined as any action, omission, conduct, approach or commercial communication, including advertising and marketing, by a profession - al, directly related to the promotion, sale or supply of goods or services, or relating to rights and obligations. The French Supreme Court ( Cour de cassation ) defines advertising as any means of information ena - bling a potential customer to form an opinion on the results that can be expected from the goods or ser - vices offered by the advertiser, and on the character - istics of the goods or services offered (Cass. com., 6 May 2008, no 04-19.713). With regards to the definition used by professionals in the industry, the ICC (International Chamber of Com - merce) Advertising and Marketing Communications Code (upon which the self-regulatory ARPP code is based) defines “advertising” or “advertisement” as any form of marketing communications carried by the media, typically in return for payment or other valuable consideration. 1.5 Pre-Approvals The right to advertise products or services arises from the freedom of commerce and from the freedom of expression. Pre-approvals are not generally required. Pre-approval is required in the following circumstanc - es. • Pre-approval is required for advertisements on TV and on on-demand services (VoD, catch-up TV, etc). Advertisers must provide their intended commercial TV to the ARPP, which will ensure that it complies with both the legal and ethical require - ments before broadcasting. If necessary, the ARPP will require modifications to be made prior to broadcast. • Advertising for drugs is very limited but, when allowed, all advertisement targeting health profes - sionals and consumers are subject to prior control
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