FRANCE Law and Practice Contributed by: Marianne Le Moullec, Gaëlle Robic and Joséphine Perrin, Orasis Avocats
4. Comparative Advertising and Ambush Marketing 4.1 Specific Rules or Restrictions
• preselection (for example, a checked box that the consumer has to uncheck); • “roach motel” (making it very difficult to find the termination process or the subscription process); • hidden costs; and • disguised advertisement. As misleading practices, dark patterns may consti - tute unfair commercial practices prohibited by Article L.121-1 of the French Consumer Code; for example, falsely declaring that a product or a service will only be available for a very limited period of time is listed in the Consumer Code as a misleading practice. Article 25, Section 1 of the DSA also provides that providers of online platforms should not design dark patterns, and French law prohibits dark patterns for the termination of consumer contracts – consumers must have sim - ple, direct and permanent access to the termination process (Article L.215-1-1 of the French Consumer Code). 3.4 Sponsor Identification and Branded Content Advertising must be clearly identified as such, and must contain the name of the advertiser; an advertise - ment in which the advertiser is not clearly identifiable is listed as a misleading commercial practice. Under the DSA, the commercial nature of the message pub - lished online or on social media must be written in a “prominent” way on the social media platform. 3.5 Special Rules for Native Advertising Consumers should not be led to believe that they are viewing editorial articles rather than commercial advertisement, which is classified as a misleading practice under French law. In August 2023, the DGC - CRF issued a fine of EUR650,000 to a media seller named Taboola which had published advertisements disguised as editorial content. The ARPP has issued guidelines providing that when the online “brand content” (advertisement) is dis - played among online editorial content, it should be apparent and not copy the presentation of the editorial content. If there is a risk of confusion with editorial content, a specific mention must be inserted (“content created by brand X”).
Comparative advertising is advertising that compares goods or services by implicitly or explicitly identifying a competitor or goods or services offered by a com - petitor. Comparative advertising is allowed, but it is regulated by Articles L.122-1 to L.122-7 of the French Consumer Code. To qualify as comparative advertising, three cumula - tive conditions must be met: • there must be a commercial message that makes a comparison; • there must be a competitive relationship; and • the competitor or its products must be identifiable. However, the identification may be implicit – the com - petitor’s name does not need to be quoted. To be lawful, comparative advertising should: • not be misleading or likely to mislead; • not relate to goods or services that meet the same needs or have the same purpose; and • objectively compare one or more essential, rele - vant, verifiable and representative characteristics of those goods or services, which may include price. In addition, to be lawful, comparative advertising should not: • take unfair advantage of the reputation attached to the competitor’s trade marks or any distinctive signs; • discredit or denigrate the competitor’s trade marks or any distinctive signs; • create confusion between the advertiser and a competitor or between the advertiser’s trade marks and those of the competitor; or • present goods or services as an imitation or repro - duction of goods or services that benefit from a protected trade mark.
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