Pierre Xavier Chomiac was pleased to speak again at Panthéon University during a professional event dedicated to the digital sector.
The annual conference of the Center for Legal and Economic Studies of Digital Technology (CEJEN), under the direction of Professors Jérôme Passa and Jérôme Huet, devoted its 2025 edition to the theme of digital contracts. Entitled “Adapting Businesses to the New Economy: Digital Supply Contracts,” the conference took place on January 24, 2025, at the Panthéon Center.
PCS Avocat’s presentation focused on the legal issues related to internet access and its contractualization through internet access provision contracts.
Digital Law Symposium: Contracts for the Supply of Digital Resources
The morning session was dedicated to the topic of digital services contracts.
Introduced by Stéphane Mouy, Senior EKYC and Data Protection Consultant, the issue of digital customer identification led to discussions on several legal issues, particularly regarding personal data protection (GDPR), anti-money laundering and counter-terrorist financing (AML/CFT), and compliance with various regulatory obligations depending on the types of services and products used by internet users: professional traceability, electronic identification, and professional liability, etc.
Anne-Danis Fatôme, Professor at Paris Nanterre University, focused on presenting the legal framework of email, which is complicated by the diversity of its forms and uses by its users.
Caroline Laverdet, Attorney and Doctor of Law specializing in metaverse law, offered her expertise on digital services contracts within the metaverse.
The afternoon session of the conference focused on digital content supply contracts, with additional presentations on the following topics:
- Social networks and copyright by Charlotte Bruguière (Lawyer at the Lyon Bar)
- Database provision by Cédric Manara (Head of Copyrights, Google)
- Transfer of personal data by Thibault Douville (Director of the Master’s program in Digital Law, Caen)
- Data acquisition and processing (Perrine Sterne, Legal Counsel at Pigment)
Access to the internet: a near-fundamental right
At a time when public authorities are enshrining digital identity as a means to guarantee the full application of rights both online and offline, it seems worthwhile to examine its essential prerequisite: access to the internet.
Access to the internet, as a massive contemporary communication tool, is considered a fundamental right, an extension of the rights to freedom of expression and communication. Presented as a “fundamental right in development,” France has distinguished itself by adopting laws guaranteeing non-discriminatory access and providing support to the most vulnerable to maintain their connection.
Internet access: a right governing physical infrastructure and a virtual space
This access to the internet is actually based on a dual physical and virtual dimension:
- The physical dimension concerns the technical infrastructure of telecommunications, the legal framework of which depends on a variety of administrative and legal standards with a strong international character: telecommunications, the law of the sea and submarine cables, space law for satellites, environmental law, etc.
- The virtual dimension refers to the identification and regulation of practices within a new, dematerialized space.
As a consequence of this dense and complex legal framework, a large number of public entities are competent to monitor and even penalize the conditions of access to the internet: the Regulatory Authority for Electronic Communications, Postal Services and Press Distribution, the Ministry of the Economy, Finance and Industrial and Digital Sovereignty, the Defender of Rights, the National Commission for Information Technology and Civil Liberties (CNIL), the Council of State, and the National Agency for Territorial Cohesion (ANCT).
Internet access contracts : legal frame
In the context presented by the various stakeholders, understanding internet access contracts also involves a distribution of specific obligations for both providers and consumers.
Providers’ obligations in internet access contracts go far beyond simply providing a connection. They must guarantee the quality and continuity of service, clearly inform consumers about subscription and termination terms, and ensure compliance with regulatory requirements, particularly regarding the protection of personal data.
Internet access, while essentially intangible, is not simply a physical good, but a continuous data transmission service based on long-term performance commitments. In fact, an internet access contract is often perceived as a contract for electronic communications services rather than the sale of goods. This means that providers must ensure a regular, uninterrupted service with contractually defined quality levels.
In addition to network connectivity, contracts may include ancillary services, such as equipment rental (modems, routers) or the provision of digital content like movies or music. These services must be explicitly mentioned and differentiated in the terms and conditions to avoid any confusion. Providers must ensure that these ancillary elements are clearly distinct from the core commitments related to providing internet access services, while guaranteeing complete transparency regarding their management.
In France, these contracts are regulated by the Regulatory Authority for Electronic Communications and Posts (ARCEP), which imposes quality and continuity of service obligations on providers. These requirements ensure that consumers benefit from a stable and reliable connection, with precise technical criteria for speed and availability.
Internet access contracts: Judicial oversight of unfair terms
Case law has frequently examined the clauses in internet access contracts, declaring some of them abusive.
In a decision of the Court of Justice of the European Union (CJEU) of September 2, 2021 (C-34/20 – Telekom Deutschland, C-5/20 – Bundesverband der Verbraucherzentralen und Verbraucherverbände, and C-854/19), commercial practices based on zero tariffs were deemed unlawful.
Regarding the statute of limitations, the Civil Chamber of the Court of Cassation (Civ. 1re, March 13, 2024, no. 22-12.345) held that “The statute of limitations for an action cannot be contractually reduced to less than one year from the day on which the holder of the right knew or should have known the facts enabling them to exercise it (French Civil Code, art. 2254, para. 1).” The clause reducing the applicable limitation period below this limit, in favor of the supplier, must be deemed unwritten.
Strict liability regime for providers of access to electronic communications services
Historically, case law has relied on general legal principles to impose a performance obligation on internet service providers.
Using Articles 1147 and 1148, now Articles 1231-1 and 1218 of the French Civil Code, several decisions have reaffirmed this performance obligation, often by classifying clauses limiting or excluding liability as abusive (French Supreme Court, First Civil Chamber, November 8, 2007; French Supreme Court, First Civil Chamber, November 19, 2009), following earlier substantive decisions (Paris Regional Court, April 5, 2005; Versailles Court of Appeal, September 15, 2005; Cherbourg District Court, July 12, 2007).
More recently, in a decision dated March 13, 2024, a new legal basis was invoked: Article 15 of the French Law on Confidence in the Digital Economy (LCEN), which concerns contracts concluded electronically.
“It follows from Articles 14, paragraphs 1 and 2, and 15, I, of Law No. 2004-575 of 21 June 2004 on confidence in the digital economy, that a provider of access to an electronic communications service is fully liable to its customer for the proper performance of the obligations arising from the contract and that it can only be relieved of all or part of its liability by providing proof that the non-performance or poor performance of the contract is attributable either to its customer, or to the unforeseeable and insurmountable act of a third party unrelated to the provision of the services provided for in the contract, or to a case of force majeure. The provisions of Article 15, I, cited above, being mandatory insofar as they concern contracts concluded between providers of access to electronic communications services and their customers, contractual freedom does not permit any derogation from them (Civ. 1re, March 13, 2024, no. 22-12.345).
The Court of Cassation follows the recommendation of the Commission on Unfair Terms (BOCCRF July 31, 2007), considering the provision of access by the professional to be an activity devoid of any risk and subject to an obligation of result.
Article 15 of the LCEN: Obligation of result and public policy
As a reminder, Law No. 2004-575 of June 21, 2004, on confidence in the digital economy (hereinafter the “LCEN”), transposes Directive 2000/31/EC of the European Parliament and of the Council of June 8, 2000, on certain legal aspects of information society services.
This law essentially aims to strengthen consumer confidence in order to boost electronic commerce, which is intended, in the medium term, to replace all other methods of distance selling.
Article 15, adopted on June 21, 2004, introduces a strict liability regime for professionals engaged in e-commerce.
These professionals are therefore subject to an obligation of result, and their liability can be invoked without the customer having to prove that they committed any fault in the performance of the services. In the judgments discussed, the Court of Cassation ruled, for the first time to our knowledge, that this text is a matter of public policy. Once a law concerns public policy, it cannot be derogated from by private agreements (Civil Code, art. 6).
On this point, it stipulates that:
“I. – Any natural or legal person carrying out the activity defined in the first paragraph of Article 14 [person who offers or provides goods or services remotely and electronically] is fully liable to the buyer for the proper performance of the obligations arising from the contract, whether these obligations are to be performed by that person or by other service providers, without prejudice to their right of recourse against the latter.
However, they may be relieved of all or part of their liability by proving that the non-performance or improper performance of the contract is attributable either to the buyer, or to an unforeseeable and insurmountable event caused by a third party unrelated to the provision of the services stipulated in the contract, or to a case of force majeure.”
Doctrinal critique of the application of Article 15 of the LCEN: conformity of the transposition
Article 15 of the LCEN (Law on Confidence in the Digital Economy) appears to comply with Directive 2000/31/EC, although it introduces additional obligations for e-commerce professionals, notably:
Regarding the liability of service providers, Article 15 proposes strict liability for professionals engaged in e-commerce activities, whereas the Directive limited the liability of hosting providers and technical intermediaries.
Monitoring obligation: Instead of prohibiting a general monitoring obligation, the LCEN proposes increased liability for professionals.
Motivated by the desire to strengthen consumer confidence and ensure the proper performance of contracts, these provisions could be perceived as an over-implementation of the Directive that exceeds the minimum requirements set forth, making the obligations of Article 15 excessive or unnecessarily restrictive.
The CJEU has confirmed in several judgments (Scarlet Extended, C-70/10, and SABAM, C-360/10) that States can impose specific surveillance obligations, provided that they respect the principles of proportionality and do not unduly hinder fundamental rights (freedom of expression, protection of personal data).
Over-implementation of European directives: procedures and sanctions
Continuing the scholarly analysis of these elements, the proposed over-implementation could pose a problem if it disproportionately hinders the free movement of goods or services or the internal market (C-142/05, Mickelsson and Roos) or if it contradicts the directive’s general objective of harmonization (C-58/08, “Vodafone”). To date, however, Article 15 of the LCEN (Law on Confidence in the Digital Economy) in its current wording has not been declared incompatible with the directive.
Hypothetically, a national court or the CJEU (Court of Justice of the European Union) could annul the over-implemented measure or limit its application. As a reminder, directives impose an obligation on Member States to implement them while leaving them free to choose the means by which they comply, with the measures adopted being communicated to the European Commission.
In the event of failure or non-compliance with these formalities, Article 258 of the Treaty on the Functioning of the European Union (“TFEU”) establishes the general infringement procedure against Member States which have failed to fulfill their obligations (formal notice, referral to the CJEU or even financial sanctions Art. 260)
