|During the year 2000 it offered the public a subscription formula in an all-inclusive unlimited package (Internet + telephone calls) at 199.00 F TTC per month as a standard offer and 99 F TTC as part of an operation. exceptional promotional linked to a 24-month commitment with direct debit.
The success of this operation meant that the time spent online by subscribers exceeded the capacity of the network set up by AOL.
AOL then took action by installing session modulators for heavy subscribers and inaction screens or timers.
The UFC QUE CHOISIR had the AOL company summoned for interim relief, accusing it of misleading advertising because the unlimited nature of the subscription was no longer guaranteed.
By order of February 20, 2001, the summary judge of the Tribunal de Grande Instance of Nanterre notably:
-declared the summons void in that it was issued by Philippe CB. and Nathalie G., –
noted the illegal nature of AOL’s advertisements relating to the offer of
-ordered to AOL within eight days of service of the order and under penalty of 50,000.00 F per day of delay in the context of subscriptions taken out on the basis of illegal offers:
-to proceed with the removal of “timers” and “session modulators” put in place.
– to suspend all invoicing and any deduction from the cost of the subscribed packages until the execution of the measures prescribed above, –
authorized the publication of the decision in four national newspapers, –
rejected the request for publication on the AOL portal , –
condemned AOL to pay to UFC QUE CHOISIR a sum of 250,000.00 F as provisional compensation and that of 20,000.00 F for irrecoverable costs.
The AOL company appealed against this order and was granted leave to litigate on a fixed day.
She asks the Court to:
-state the inadmissibility of the requests of the UFC QUE CHOISIR for compensation for collective damage, –
declare the UFC QUE CHOISIR ill-founded in its requests to report the proof of unlawful acts of false advertising or contracts not respected, –
condemn the UFC QUE CHOISIR to the payment of a sum of 100,000,000 F in compensation for the damage suffered as a result of the abusive procedure.
– as necessary, to say that such member representing the ART competent in the field of the Internet will be heard at a future hearing, as an “amicus curiae” in order to clarify the jurisdiction seized on the state of art in terms of the provision of Internet access and on the unlimited access package offer marketed by AOL, – to
condemn the UFC QUE CHOISIR to the payment of an indemnity of 50,000.00 F by application of the article 700 of the New Code of Civil Procedure.
It essentially maintains that when the advertisement was over, the summary judge could not take the measures he took since the measures put in place did not contravene the unlimited nature of the package.
THE UFC WHAT TO CHOOSE, Mr. CB. and Mrs. G. conclude to the confirmation of the order except to say that the publication will also be ordered on the portal of AOL for one month.
Mr. C.-B. and Mrs. G., provoked appellants, request the payment of a sum of 10,000.00 F each as a provision for damages and the UFC QUE CHOISIR the payment of an indemnity of 20,000.00 F by application of article 700 of the New Code of Civil Procedure.
They claim that AOL did not respect its contractual obligations by putting in place a device interrupting the connection at the expiration of a certain period of time.
REASONS FOR THE JUDGMENT
On the calls provoked by Mr. CB. and Madame G.
Whereas these appeals are admissible in application of the provisions of article 549 of the New Code of Civil Procedure;
Whereas article 56 of the New Code of Civil Procedure provides that the summons must contain, on pain of nullity, the object of the request with a statement of the means in fact and in law;
Whereas if the request presented by the UFC QUE CHOISIR is perfectly justified both in fact and in law, no precision is given in the summons nor on the basis of the action of Mr. CB. and Mrs. G. nor on the reality of the damage for which they sought compensation;
That this lack of motivation caused a grievance to AOL which was not able to respond usefully to unexplained requests;
That it is with good reason that the first judge pronounced the nullity of the document initiating proceedings with regard to these two applicants;
Whereas the order will be confirmed on this count;
On the admissibility of the action of the UFC QUE CHOISIR
Whereas the company AOL maintains that the UFC QUE CHOISIR is inadmissible to ask for compensation for collective damage;
But given that in application of article L 421-1 of the Consumer Code, regularly declared associations having the explicit statutory object of defending the interests of consumers, may, if they have been approved for this purpose, exercise the rights recognized to the civil party in relation to facts directly or indirectly prejudicial to the
That article L 421-2 of the same code offers them the possibility of asking the civil court to order, if necessary under penalty, all measures intended to put an end to unlawful acts;
Whereas in this case the UFC QUE CHOISIR, an association approved for the defense of consumer interests, is acting against AOL, which it accuses of having used misleading advertising likely to mislead subscribers who have contracted with AOL on the basis of the contract touted by this advertisement and of not having respected the contractual clauses, in particular as regards the unlimited nature of the proposed package;
That in doing so, it tends to obtain compensation for direct or indirect damage which would have been brought to the collective interest of consumers constituted by all the subscribers of the “unlimited package” contracts offered by AOL, and possibly the candidates for subscription ;
That his action, which falls within the provisions of articles L 421-1 and L 421-2 of the Consumer Code, is admissible;
That the ordinance will be confirmed on this count;
On the action of the UFC QUE CHOISIR
Whereas article 809 paragraph 1 of the New Code of Civil Procedure and article 421-2 of the Consumer Code authorize the summary judge to prescribe the precautionary or remedial measures which are necessary to put an end to a disorder manifestly unlawful, even in the presence of a serious dispute;
Whether or not in determining whether the advertising carried out by AOL was unlawful or not and whether the contract was properly performed, the very object of the contract is immaterial and the Court is in a position to analyze the terms thereof and the applicable legal rules without having recourse to the illumination of a third party competent in the field of the Internet;
That the request to hear an “amicus curiae” will be rejected;
Whereas the UFC QUE CHOISIR seized the judge of summary proceedings to establish the illicit actions of the company AOL for the non respect of the advertising promises and the non respect of the contracts and not to stop the disputed advertising;
That therefore the fact that the advertising was interrupted before the referral to the first judge does not affect the very admissibility of the request:
That it is advisable to examine this one which tends, it is necessary to recall it , to bring the service provided by AOL into conformity with the terms and conditions provided for in the contract;
Whereas the offer proposed by AOL during the second half of 2000 related to an unlimited and all-inclusive Internet access package which differs from the packages offered by other operators or from the other subscriptions offered by AOL, on the one hand , by the fact that the price includes both the connection to the Internet and the cost of the telephone call and, on the other hand, the absence of time limitation on the connections for the agreed price;
That the advertisements put the accent on this last element by mentioning an Internet access 7 days a week and 24 hours a day and by specifying “with this formula you can surf as much as we want, without worrying about the time. spent online. Indeed, whatever your connection time,
Whereas AOL maintains that the unlimited nature of the package does not concern the modality of access to the network but the modality of invoicing the service:
But given that from the moment when in return for payment of the agreed price, the service provider s ” undertakes to allow unlimited access to the Internet, it is not possible for it, whatever the technical reasons invoked, to arbitrarily interrupt access to the network at the end of a certain period of communication;
Whereas, as the trial judge rightly noted, the term “unlimited” used without restriction means “without limit” and it was up to AOL to make it clear that this term only applied to the number of connections , the duration of each
Whereas in the absence of restriction or reservations, the subscriber of the contract was entitled to remain connected to the Internet without any limit;
However, the measures taken by AOL deprived users of this possibility;
That the first consisted in setting up a “session modulator” which automatically interrupts the connection after thirty minutes, without the user being able to oppose it and without being able to reconnect immediately after a delay a few minutes being necessary:
Whereas, of course, this measure only affected “large consumers” (3% of subscribers according to AOL);
That, however, an arbitrary interruption of the connection of users who thought they could “surf” the Internet without limitation is contrary to contractual clauses and advertising arguments;
That the number of persons concerned does not affect the reality of the non-performance by AOL of its obligations;
That in addition article 2 of the general conditions of use which provides that AOL reserves the right to modify or discontinue at any time certain aspects of the AOL service, including contents and services, assuming this clause is valid, does not allow not for AOL to remove a determining element of the contract and is foreign to the assessment of the false character of the advertisement;
Finally, it should be noted that these session modulators have been removed by AOL since the issuance of the order;
Whereas the second measure consisted in setting up a “timer” or inaction screen which interrupts the connection after 30 minutes if the user did not respond positively to the request made to him;
Whereas this device obliges the user to remain physically in front of his computer in order to be able to intervene as soon as he is requested, whereas certain operations such as downloading do not require this presence;
That it affects the unlimited nature of the connection;
Whereas the procedures implemented by AOL are contrary to both contractual clauses and
That it is with good reason that the first judge found the existence of a disorder manifestly unlawful and took measures to put an end to it;
On the measures to be taken
Whereas the removal of session modulators is an essential measure to allow unlimited access to the Internet:
Whereas with regard to timers, this device is useful for the consumer himself since in in the event of a connection without prolonged use, it is in its interest that the connection be interrupted after a certain period of time has elapsed to free the telephone line and prevent unwanted use of the Internet by third parties;
That it is therefore advisable to order the removal of timers only outside periods of absolute inaction, that is to say when no input or output signal from the computer is emitted;
Whereas also the suspension of invoicing and deductions of the cost of the fixed prices for the execution of the above mentioned prescriptions is a measure intended to put an end to the illicit acts and must be ordered;
Whereas the publication ordered by the first judge complies with the provisions of article L 421-9 of the Consumer Code;
However, in the case of a dispute relating to an electronic means of communication, it is logical that the publication of the decision should also be made by this means of communication;
That the incidental appeal of the UFC QUE CHOISIR on this count will be granted;
Whereas the collective damage for which the UFC QUE CHOISIR requests compensation is not seriously contestable and must not be limited to symbolic compensation;
That however the provisional sum allocated by the first judge is excessive and must be reduced to 100,000.00 F;
Whereas the main request being granted, the UFC QUE CHOISIR cannot be criticized for having discredited the product of the AOL company and for having abused its right to take legal action;
That AOL’s counterclaim will be dismissed;
Whereas it would be unfair to allow the respondent to bear the irrecoverable costs that he incurred.
Ruling publicly, contradictorily and as a last resort,
Confirms the order undertaken except as regards the modalities for removing the timers, the amount of the provisional compensation and the publication of the decision on the AOL portal,
The invalid of these heads and ruling again,
Orders the removal of timers but only outside of periods of absolute computer inaction,
Holds that the publication of this judgment will also be made on the AOL portal for a period of one month from the meaning of the judgment under the same penalty as that ordered by the first judge,
Condemns the company AOL to pay the UFC QUE CHOISIR a provisional indemnity of 100,000.00 F (one hundred thousand francs) or 15,244.90 Euros (fifteen thousand two hundred and forty four euros and ninety cents) to be worth on the repair of his prejudice,
Condemns the company AOL to pay the UFC QUE CHOISIR additional compensation of 15,000.00 F (fifteen thousand francs) or 2,286.74 Euros (two thousand two hundred and eighty six euros and seventy four cents) by application of article 700 of the New Code of Civil Procedure.
Said that Mr. CB. and Mrs. G. will retain the charge of their own costs,
Condemns the company AOL to the costs of appeal which will be recovered by SCP DEBRAY-CHEMIN, admitted, in accordance with article 699 of the New Code of Civil Procedure.
And have signed this judgment:
Mr Michel FALCONE, President, who delivered it,
Mrs Laurence IMBERT, Registrar, who attended its delivery,