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Global Media and Communications Watch The International Legal Blog for the Tech, Media and Telecoms Industry
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The French Supreme Court confirms that advertising on social networks is subject to the general rules governing advertising

One of the growing focuses of French case law in the field of Internet law concerns advertising on social networks. A recent ruling was handed down by the French Supreme Court on this topic in a case concerning the advertising campaign for a famous French alcoholic beverage.  This case had been brought forward by the French National Association for the Prevention of Alcoholism and Addiction (ANPAA) as it considered that this advertising campaign did not comply with French restrictive laws on the advertising of alcoholic beverages.  In June 2011, a campaign had indeed been launched on several media supports to promote the alcoholic beverage in question using the word encounters (“rencontres”) associated with the name of the beverage.  As part of this campaign, a free mobile application could also be downloaded via a social network account.  This application allowed the user to download codes giving him/her access to cocktail recipes which he/she could share on his/her on social network profiles.

The ANPAA sued the beverage manufacturer in the scope of summary proceedings in order to obtain the removal of the slogan of the campaign from every advertising media, including the mobile applications.  The Paris Court of Appeal, in a decision handed on 23 May 2012, ordered the removal of the term “rencontres” (encounters) associated with the name of the alcoholic beverage, as well as the removal from the advertising campaign of the symbol “#” and of the pictures where clouds could be seen in the background of the ads.  Subsequently, the French Supreme Court decided, on 3 July 2013, to uphold this appellate decision.

Firstly, the French Supreme Court notes that the slogan of the advertising campaign constitutes “a direct incentive to consume [the alcoholic beverage] in order to live moments of conviviality“. It also notes that the clouds in the background of the ads convey feelings of “airiness” and “escape“, and that the symbol “#” is used to attract young consumers, who are “responsive to new technologies“.  As such, the Paris Court of Appeal was right to order the removal of the elements mentioned above, which indeed breached Article L. 3323-4 of the French Public Health Code (this provision strictly regulates which product qualities spirits manufacturers can put forward in their advertising campaigns).

Secondly, with regards to the free mobile applications, the French Supreme Court acknowledges that if the application’s user chooses to share a cocktail recipe with his/her contacts on social networks (by explicitly selecting the corresponding option), a message promoting the famous alcoholic beverage appears on the said user’s profile in an “unwanted, unexpected and systematic manner“.  Hence, the message had an “advertising nature” despite the fact that this message was displayed on social networks as a result of an intervention of the user.  Thus, the French Supreme Court agrees with the Court of Appeal’s application of Articles L. 3323-2 et seq. of the French Public Health Code, regulating the advertising of alcoholic beverages, to the litigious messages.

In doing so, the French Supreme Court confirms that advertising on social networks (via the Internet or mobile applications) is governed by similar laws as those applicable to other media.  Advertisers should thus be cautious and take into account existing legal restrictions on advertising when conceiving their campaigns for the Internet or mobile applications.  In addition, the question of the potential liability of the social networks’ operators was not discussed in this case.  Yet, this advertising campaign had been created and posted by the beverage manufacturer and not the social networks.  As a result, it is very likely that the latter could have asserted the limited liability rules of hosting providers.