By Pascale Gelly

Beware: unconscionable privacy clause!

The French Supreme Court (Cour de Cassation) held as unconscionable a clause in the general terms of subscription of the mobile phone company SFR.
The clause entitled “nominative data” provided that:

“SFR has the right, unless the subscriber indicates otherwise, to use and communicate such information to third parties, including to market research firms and poll institutes, exclusively for purposes of study and analysis, or to businesses as part of commercial operations jointly carried out or not, such as direct marketing by post mail. The subscriber may object to this use by contacting SFR.”

SFR argued rightfully that the Data Protection Act does not prohibit the processing of personal data for direct solicitation by post mail, but that it does create a protective framework by granting individuals the right to object to such processing.
Still, the court considered that this clause was abusive, as it failed to provide sufficient protection to the subscriber, and gave an advantage to SFR without any consideration for the subscriber.

Actually, this clause does not only address mail solicitation, but it is much more general and evasive: it covers the use of personal data for study and analysis and the sharing of data with third parties for commercial operations in general. The court held that these operations should be subject to the subscriber’s prior consent and it ordered the deletion of the clause within a month.



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