Decision no. 2022-1016 QPC of 21 October 2022

Decision No. 2022-1016 QPC
of 21 October 2022
(ContextLogic Inc.)
[Dereferencing an online interface]
 
On 26 July 2022, the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality raised by the Conseil d’État (decision no. 459960 of 22 July 2022). This application was made on behalf of ContextLogic Inc. by Alexandre Le Mière, lawyer at the Paris Bar. It was registered by the general secretariat of the Constitutional Council under no. 2022-1016 QPC. It relates to the conformity with rights and freedoms that the Constitution guarantees in 2° (a) of Article L. 521-3-1 of the Consumer Code, in its formulation resulting from Act No. 2020-1508 of 3 December 2020 containing various provisions for adapting to European Union law on economic and financial matters.
Having regard to the following texts:
- the Constitution;
- Ordinance No. 58-1067 of 7 November 1958, constituting an institutional act on the Constitutional Council;
- the Consumer Code;
- the Code of Administrative Justice;
- Act No. 2020-1508 of 3 December 2020 containing various provisions for adapting to European Union law on economic and financial matters;
- the Regulation of 4 February 2010 as to the procedure applicable before the Constitutional Council with respect to applications for a priority preliminary ruling on the issue of constitutionality;
Having regard to the following documents:
- the observations on behalf of the applicant company by SCP Melka - Prigent - Drusch, lawyer at the Conseil d’État and at the Cour de Cassation, registered on 17 August 2022;
- the observations of the Prime Minister, registered on the same date;

• the observations of intervenors on behalf of Google Ireland Limited by Sébastien Proust, lawyer at the Paris Bar, registered on the same date;
• the second observations of the Prime Minister, registered on 7 September 2022;
• the second observations of intervenors on behalf of Google Ireland Limited by Sébastien Proust, registered on the same date;
  - the additional documents produced and appended to the case files;
  After having heard Ludwig Prigent, lawyer at the Conseil d’État and at the Cour de Cassation, and Alexandre Glatz, lawyer at the Paris Bar on behalf of the applicant company, Sébastien Proust, for the intervening company, and Antoine Pavageau, appointed by the Prime Minister, at the public hearing of 11 October 2022;
  And after having heard the rapporteur;
  THE CONSTITUTIONAL COUNCIL DECIDED THAT:

1. Article L. 521-3-1, 2° (a) of the Consumer Code, as amended by the aforementioned Act of 3 December 2020, provides that when certain violations of the provisions of the same code are detected, the administrative authority responsible for competition and consumer affairs may:
   “Notify persons covered by Article L. 111-7 of this code of the electronic addresses of online interfaces whose content is clearly unlawful so that they can take any useful measure to stop their being referenced.”
2. The applicant company, joined by the intervening company, criticises these provisions for allowing the administration to order the dereferencing of an online interface, without making such a measure subject to the authorisation of a judge or providing that it must be limited in time and relate only to content that is manifestly unlawful. In view of the consequences that this measure would have for the operator of the interface and its users, it would result in an infringement of the freedom of expression and communication as well as the right of free enterprise.
3. The intervening company also argues that these provisions disregard the right to an effective legal protection, the defendant’s rights, the principle of legal certainty and the “right to good administration”, since they do not provide that the decision ordering dereferencing must be reasoned and preceded by an adversarial procedure.

• Concerning the objection related to the infringement of the freedom of expression and communication:

4. As stated in Article 11 of the Declaration of Human and Civic Rights of 1789: “The free communication of ideas and of opinions is one of the most precious rights of man. Any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law.” In the current state of the media and in view of the widespread development of online public communication services and the importance of such services for participation in democratic life and the expression of ideas and opinions, this right implies the freedom to access and express oneself in such services.
5. Article 34 of the Constitution provides that: “Statutes shall determine the rules concerning: civic rights and the fundamental guarantees granted to citizens for the exercise of their civil liberties.” On this basis, the legislator has the liberty to lay down rules concerning the exercise of the right of free communication and the freedom to speak, write and print. The legislator may also, in this respect, institute provisions designed to put an end to abuses of the exercise of freedom of expression and communication that are prejudicial to public order and the rights of third parties. However, freedom of expression and communication is even more important in that its exercise is part of democracy and one of the guarantees of the respect of other rights and freedoms. It follows that the infringements on the exercise of this freedom must be necessary, appropriate, and proportional to the pursued objective.
6. Article L. 521-3-1 of the Consumer Code provides that the administrative authority in charge of competition and consumption may take measures to stop certain fraudulent commercial practices committed from an online interface. Among these measures, the disputed provisions provide that, in certain cases, it may order online platform operators to dereference the electronic addresses of online interfaces for which the content is unlawful.
7. These provisions allow the administrative authority to limit users’ access to websites or applications by requiring the disappearance of their electronic addresses from the ranking or listing implemented by online platform operators. These provisions infringe on the freedom of expression and communication.
8. Firstly, by adopting the disputed provisions, the legislator intended to strengthen consumer protection and ensure the fairness of online commercial transactions. In doing so, the legislator pursued an objective in the general interest.
9. Secondly, on the one hand, the dereferencing measure only applies to websites or applications operated for commercial purposes by or on behalf of a professional and enabling consumers to access the goods or services they offer, when practices have been observed from these interfaces which characterise certain offences punishable by a penalty of at least two years’ imprisonment and which are likely to seriously undermine fair trade or consumer interests. On the other hand, only the electronic addresses of online interfaces whose content is clearly unlawful may be dereferenced.
10. Thirdly, the disputed provisions can only be implemented if the perpetrator of the fraudulent practice observed on this interface has not been identified or if they have not complied with a compliance order issued after an adversarial procedure and which can be challenged before the competent court.
11. Fourthly, the time limit set by the administrative authority for dereferencing may not be less than 48 hours. This time limit allows interested parties to usefully challenge this decision by way of an application for a summary procedure on the basis of Articles L. 521-1 and L. 521-2 of the Code of Administrative Justice.
     
12. Finally, the disputed provisions allow, under judicial review which ensures its proportionality, that the dereferencing measure applies to all or part of the online interface.
13. It follows from the foregoing that the objection due to the infringement of the freedom of expression and communication must therefore be dismissed.

• Concerning the objection to the infringement of the right of free enterprise:

14. As provided for in Article 4 of the Declaration of Human and Civic Rights of 1789, the legislator has the liberty to impose limitations related to constitutional requirements or requirements that are justified by the public interest, on condition that they do not result in disproportionate infringements on the pursued objective.
15. By allowing the administrative authority to order the dereferencing of the electronic addresses of online interfaces offering goods or services, the contested provisions infringe the freedom of enterprise. However, they do not prevent the operators of these interfaces from carrying out their commercial activities, as their addresses remain directly accessible online. Consequently, and for the same reasons as those set out above, the objection relating to the infringement of the right of free enterprise must be dismissed.
16. The disputed provisions, which do not infringe the right to effective legal protection and defendant’s rights, nor any other right or freedom guaranteed by the Constitution, must be declared as conforming to the Constitution.
     
     
    THE CONSTITUTIONAL COUNCIL DECIDED:
    Article 1. - Article L. 521-3-1, 2° (a) of the Consumer Code, as amended by Act No. 2020-1508 of 3 December 2020 containing various provisions for adapting to European Union law on economic and financial matters, conforms to the Constitution.
    Article 2. - This decision will be published in the Journal Officiel of the French Republic and notified in the manner provided for in Article 23-11 of the aforementioned ordinance of 7 November 1958.
    Ruled by the Constitutional Council in its 20 October 2022 session, with the following members present: Laurent FABIUS, President, Jacqueline GOURAULT, Alain JUPPÉ, Corinne LUQUIENS, Jacques MÉZARD, François PILLET, Michel PINAULT and François SÉNERS.
    Published on 21 October 2022.