FRANCE Law and Practice Contributed by: Clara Hainsdorf, Bertrand Liard, Saam Golshani and Guillaume Vitrich, White & Case LLP
Net neutrality impacts TMT operators by requir - ing them to treat all internet traffic equally, pre - venting them from offering premium “fast lane” services for additional fees. This ensures fair competition, as ISPs cannot prioritise services like Netflix over smaller video platforms, but it also removes a potential revenue source for ISPs. 6.3 Emerging Technologies Emerging technologies like 5G, IoT and AI are reshaping the legal landscape of TMT in France, requiring stringent regulatory compli - ance. ARCEP oversees 5G deployment, while GDPR mandates strong data privacy and secu - rity measures. Intellectual property protection and clear liability contracts are crucial due to the complexities introduced by AI and IoT. Cyber - security laws protect critical infrastructure, and competition laws ensure fair business practices. Consumer protection laws demand transparen - cy and honesty, and environmental regulations like REACH aim to reduce the technological impact on the environment. Companies must stay updated on legal changes, ensuring com - pliance across these areas while considering ethical implications. 7. Challenges with Technology Agreements 7.1 Legal Framework Challenges Parties’ Level of Expertise Issues in IT service agreements often stem from late or incorrect fulfilment of contractual obligations, making the allocation of responsi - bilities crucial. Customers are often unfamiliar with the technology, and rely on the service provider's obligation to advise and inform dur - ing both negotiation (Article 1112-1 of the Civil Code) and performance (Article 1104 of the Civil
Code). This includes informing about the cus - tomer's needs and warning against unlawful or risky expectations, even refusing the contract if necessary. Customers must also collaborate with the provider. Since 2016, French law protects against unfair clauses in pre-formulated standard agreements, including B2B contracts. If these terms create a significant imbalance, they may be deemed unfair and unenforceable, potentially invalidating the entire agreement if the clause is essential. Liability of the Service Provider and Service Level Providers may try to exclude or limit their liability by excluding indirect damages; such exclusion is authorised under French law, although provid - ers will try to have a broad definition of “indirect damages” to include loss of data, loss of clients, breach of data privacy, etc. Unless these liability clauses deny the essential obligation of the pro - vider, in which case they are prohibited, liability clauses (including the amount of the liability cap, if any) are often one of the key topics of the par - ties’ service agreement negotiations. However, because the parties may not have the same bargaining power, especially when cus - tomers are consumers or businesses with no IT expertise or when the product is complex or customised, those clauses may be more easily challenged and unenforceable. To better iden - tify providers’ contractual breach, customers would be advised to detail their needs as much as possible and to set out clear specifications in terms of performance (eg, through a service level agreement) or in terms of timeframe (eg, includ - ing provision for liquidated damages). To assess whether the service provider has com - plied with its obligations under IT service agree -
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