Part 1 – French Digital Council Releases Its "Digital Ambition" Report
As reported last October 2014, this Report is the result of a five-month (October 2014 – February 2015) national consultation launched by French Prime Minister Manuel Valls, along with State Secretary for digital economy Axelle Lemaire. Overall, 17,678 contributions were received from 2,300 contributors. On the basis of these contributions, the French Digital Council drafted its Report containing 70 recommendations to change the current legislation. The Report is divided into four parts, just like the national consultation.
The first part of the Report is dedicated to the concepts of "loyalty and liberty in a shared digital environment". It aims to lay down a legal framework to protect the individual and collective rights of consumers and citizens in digital matters. In particular, the Report recommends formally recognizing in a law the net neutrality principle (recommendation no. 1) and creating a fundamental right to "informational self-determination". Pursuant to this right, individuals should be allowed to have real control over their personal data and to assert their rights before Courts, notably through the creation of a specific class action in relation to the protection of personal data (recommendation no. 5).
Moreover, similar to the proposal developed by the French Council of State (Conseil d'Etat) in its 2014 annual report dedicated to digital technology and fundamental rights, the French Digital Council suggests that platforms should comply with a principle of loyalty towards both their professional and non-professional users (recommendation no. 6). It should be noted that the creation of a loyalty principle has also been supported by France’s telecommunications regulator, ARCEP, which voiced support for imposing such a duty on digital platforms during the national consultation. The French Digital Council insists on practical duties arising from this loyalty principle such as duties to draft clear and unambiguous terms and conditions (recommendation no. 7) or to ensure the loyalty and transparency of customization, ranking and referencing algorithms (recommendation no. 8).
The creation of such a loyalty duty in the digital environment has been the subject of numerous discussions these last months, especially in the scope of the debates surrounding the adoption of the so-called "Macron bill" (bill for growth, activity and equality in economic chances). One of the new Articles recently introduced in the Macron bill targets digital intermediaries and would impose on them new obligations notably (i) to provide clear, loyal and transparent information on the general conditions of use of the service and (ii) to explain how offers are listed, referenced and dereferenced. The Macron bill, which is still being debated, should be finally adopted in the course of July 2015.
The Digital Ambition Report provides for two mechanisms in order to ensure the effectiveness of the loyalty and self-determination principles (recommendation no. 10). The French Digital Council recommends creating a European rating agency that could gather reports from the public (consumers, associations etc.), publish opinions and give rates or labels to platforms. Secondly, a body of algorithms experts should be created and could be mobilised at the request of a regulatory authority or in the scope of judicial proceedings to analyse the algorithm used by a company in case of strong suspicion of non‑compliance with the loyalty duty.