Social media companies need to do more to respond to requests made last Spring by the European Commission and member states' consumer authorities to comply with EU consumer protection rules.
On 16 March 2017, EU consumer authorities and the European Commission met with the companies to hear and discuss their proposed solutions. Following this meeting, the companies have made certain changes to their terms and conditions. However, the Commission and consumer authorities said further changes must be made urgently.
The Consumer Protection Cooperation authorities, under the lead of the French Directorate General for Competition Policy, Consumer Affairs and Fraud Control (DGCCRF), sent a common position to Facebook, Twitter, and Google+ in November 2016 asking them to improve a number of contract terms and set up a system to tackle illegal commercial content upon notification.
The EU Consumer Protection Cooperation (CPC) Regulation link national consumer authorities in a pan-European enforcement network. Thanks to this framework, a national authority in one EU country can call on their counterpart in another EU country to ask them to intervene in case of a cross-border infringement of EU consumer rules. Cooperation is common to various consumer-related pieces of legislation—such as the Unfair Commercial Practices Directive, the E-commerce Directive, the Consumer Rights Directive or the Unfair Contract Terms Directive.
Under the CPC framework, authorities regularly review issues of common concern for consumer protection in the Single Market and coordinate their market surveillance and potential enforcement actions. The Commission facilitates the exchange of information among authorities and their coordination.
Online platforms need to take greater responsibility in content governance. The Communication provides common tools to swiftly and proactively detect, remove, and prevent illegal content online from reappearing.
The changes made by Facebook, Twitter, and Google+ to align their terms of services with EU consumer protection rules were published on 15 February 2018.
These changes will already benefit more than a quarter of a billion of EU consumers who use social media: EU consumers will not be forced to waive mandatory EU consumer rights, such as their right to withdraw from an on-line purchase; they will be able to lodge their complaints in Europe, rather than in California; and the platforms will take up their fair share of responsibilities towards EU consumers, similarly to the off-line service providers. However, the changes only partially fulfil the requirements under EU consumer law.
“I am pleased that the enforcement of EU rules to protect consumers by national authorities is bearing fruit, as some companies are now making their platforms safer for consumers; however, it is unacceptable that this is still not complete and it is taking so much time,” Vera Jourová, European Commissioner for Justice, Consumers and Gender Equality said in a statement. “This confirms that we need a ‘New Deal for Consumers’: EU consumer rules should be respected and if companies don't comply, they should face sanctions.”
While Google's latest proposals appear to be in line with the requests made by consumer authorities, Facebook and, more significantly, Twitter, have only partially addressed important issues about their liability and about how users are informed of possible content removal or contract termination.
Concerning the "notice and action procedure" used by consumer protection authorities to report and request the removal of illegal content, the changes by some companies are insufficient. While Google+ has set up a protocol, including deadlines to deal with the requests, Facebook and Twitter have only agreed to provide a dedicated e-mail address that national authorities can use to notify infringements, without committing to deal with such requests within specific timeframes.
Following numerous complaints by consumers targeted by fraud or scams when using these websites, as well as having been subject to certain terms of services that do not respect EU consumer law, an enforcement action was launched in November 2016.
Since then, social media operators specifically agreed to amend:
The terms of services limiting or totally excluding the liability of social media networks in connection with the performance of the service;
The terms requiring consumers to waive mandatory EU consumer rights, such as their right to withdraw from an on-line purchase;
The terms depriving consumers of their right to go to court in their Member State of residence, and providing the application of California law; and
The term releasing the platform from the duty to identify commercial communications and sponsored content.
The companies committed to implement the changes to their terms in all language versions in the first quarter of 2018.
As already stated in its Communication on tackling illegal content online published in September 2017, the European Commission expects online platforms to swiftly and proactively detect, remove and prevent the re-appearance of illegal content online. The Commission said it is currently working on the follow-up actions to this communication.
The national consumer authorities and the Commission will monitor the implementation of the promised changes and will actively use the notice and action procedure provided by the companies. They will focus on illegal commercial content concerning unwanted subscriptions and other scams. Moreover, authorities may take action including enforcement measures where necessary.
The Commission will present in April a “New Deal for Consumers,” the purpose of the reform is to modernise the existing consumer law and ensure that they are properly enforced.