ETHICAL CHARTER
1. PREAMBLE
This Charter reminds the Customer of the main texts applicable to the Internet. Despite the care taken, WPScale cannot assume any responsibility for information that is not contained therein, as this charter can in no way be considered exhaustive. Furthermore, this charter only concerns the legal framework relating to the editorial aspects of the customer’s activity and it is the customer’s responsibility to refer to the entire contractual framework binding him to WPScale for aspects relating to the subscribed service.
Therefore, WPScale strongly advises the Customer to seek advice to deal with his particular problem.
The customer is responsible for his own website content.
It is hereby clarified, firstly, that the Customer is personally responsible for obtaining all legal, regulatory or administrative authorisations required for the opening and website operation.
Secondly, the Customer undertakes to respect the legal and ethical rules that may govern the exercise of his profession and, more generally, the use he plans to make of the Internet site, when operating the site.
In any case, the Customer is responsible for the respect of good morals and public order, the respect of the Laws and Regulations, in particular as regards the protection of minors and the respect of the human being.
The Customer shall also be responsible for compliance with the rules relating to the personal data protection and more generally with those relating to the third parties’ rights, in particular concerning intellectual property rights, as well as rights relating to information and website content.
WPScale can suspend or discontinue all or part of the services in the event of a breach of these obligations by the Customer.
2. ONLINE PUBLIC COMMUNICATION SERVICES
The Law for Confidence in the Digital Economy of June 21, 2004 distinguishes between the different persons likely to intervene on an Internet site.
2.1 – The Internet service provider
The ISP is defined as the person whose activity is to offer access to online public communication services.
The ISP has to inform its subscribers of the existence of technical means to restrict access to certain services or to select them and to offer them at least one of these means.
He also has to inform them of the existence of means of securing their network, within the framework of article L336-3 of French Intellectual Property Code.
2.2 – The host
The host is the natural or legal person who ensures, even free of charge, for the purpose of making available to the public by online public communication services, the storage of signals, writings, images, sounds or messages of any kind provided by recipients of these services.
The host, within the meaning of the Law for Confidence in the Digital Economy, must not be confused with the service provider who, where applicable, rents a dedicated server to the host, as such a service provider merely provides a technical infrastructure.
2.3 – The publisher of an online public communication service.
The publisher of the site has the obligation to make available to the public, in an open standard :
– if it is a natural person: his name, first name, address and telephone numbers.
– if applicable, the number of his registration.
– if it is a legal entity: its name, registered office, telephone numbers, Registration number, share capital, the publication director’s name, the name, address and telephone numbers of its host.
The customer will also make sure to display :
– the applicable rate, if any.
– the advertising nature of the messages broadcast.
However, when the site is published on a non-professional basis, the publisher, in order to preserve his anonymity, may be satisfied with making available to the public the name and address of his host, having taken care to ensure that he has previously communicated to the latter, his personal identification details.
The observation of an illicit content must give place to a request formulated directly with the editor of the site.
If the latter fails to act, and if the content is clearly illegal, a dated notification may be sent to the host, indicating the contact details of the notifier, the name and address of the recipient, a description of the disputed facts and their precise location, the reasons for which the content must be removed, including a mention of the legal provisions and the factual justifications, as well as a copy of the correspondence addressed to the author or publisher of the litigious content, requesting its removal, its modification or, failing that, the reason why the author or publisher could not be contacted
In this respect, the host has no general obligation to monitor the content it hosts.
Finally, there are rules that apply to all service providers as information carriers and that relate, for the most part, to the protection of public order and the respect of good morals.
3. PUBLIC ORDER
Article 6 of French Civil Code stipulates that no one may derogate from the laws concerning public order.
The disturbance of public order is a clear breach of the public peace, provided for in particular by the provisions of articles 431-1 and following of French Penal Code.
4. MORALS AND YOUTH
Article 6 of French Civil Code states that no one may derogate from the laws concerning public decency.
The offence against public decency is defined by producing, transporting or distributing by any means and whatever the media, a message of a violent or pornographic nature or one that is likely to seriously undermine human dignity or to incite minors to play games that put them in physical danger, or to trade in such a message, is punishable by three years’ imprisonment and a fine of €75 000 when the message is likely to be seen or perceived by a minor. (article 227-24 of French Penal Code).
Article L. 227-23 of French Penal Code punishes :
– Fixing, with a view to its diffusion, recording or transmitting the image of a minor when this image is pornographic is punishable by five years imprisonment and a fine of €75 000.
– Offering, of making available or of diffusing such an image or representation, by some means that it is, of importing it or exporting it, of making it import or making it export, is punished of the same penalties;
– the penalties are increased to seven years imprisonment and a fine of €100,000 when the image or representation of the minor has been used for the dissemination of the image or representation of the minor to an undetermined public, an electronic communication network.
According to article 223-13 of French Penal Code, the penalties for incitement to suicide are increased to five years’ imprisonment and a fine of €75 000 when the victim of the offence is a minor under 15 years old.
In addition, the law n°49-956 of July 16, 1949 on publications intended for young people can be applied to the Internet when the site is intended for this public.
5. INCITEMENT TO SUICIDE
The protection of public order is covered by articles 223-13, 223-14 and 226-1 of French Penal Code.
The first article targets the provocation to suicide, punishing with three years of imprisonment and a fine of €45 000, the fact of provoking to suicide, when the provocation was followed by a suicide or an attempt of suicide.
In this respect, the Internet could be considered as a vector of provocation.
The second article targets propaganda or publicity, whatever the mode, in favour of products, objects or methods recommended as a means of committing suicide, punishable by three years’ imprisonment and a fine of 45,000 euros.
The third article concerns the fact, by means of any process, of voluntarily violating the privacy of others, and punishes it with one year’s imprisonment and a fine of 45,000 euros.
6. PIMPING
Under the terms of article 225-5 of French Penal Code, anyone who :
– help, assist or protect the prostitution of others.
– profit from the prostitution of others, to share the proceeds or to receive the subsidies of a person who habitually engages in prostitution.
– hiring, training or diverting a person for the purpose of prostitution or pressuring him or her into prostitution or continuing to do so is punishable by five years’ imprisonment and a fine of €150 000.
It should be noted that article 225-6 of French Penal Code assimilates to pimping anyone acting as an intermediary between two persons, one of whom engages in prostitution and the other exploits the prostitute, prostitution and the other exploits or remunerates the prostitution of others.
7. HACKING AUTOMATED DATA PROCESSING SYSTEMS
Articles 323-1 et seq. of French Criminal Code punishes attacks on data processing systems, in particular:
– Fraudulently accessing or remaining in all or part of an automated data processing system, accessing or fraudulently remaining in all or part of an automated data processing system.
– Obstructing or distorting the operation of such a system.
– fraudulently introducing data into such a system or fraudulently deleting or modifying data that system or to fraudulently delete or modify the data contained therein.
8. ONLINE GAMBLING – LOTTERIES
As such, lotteries are forbidden (Law of May 21, 1836 on the prohibition of lotteries).
Sales of real estate, furniture or merchandise made by lottery, or to which premiums or other benefits due, even partially, to chance have been added, and generally speaking, all operations offered to the public, under any name, in order to raise the hope of a gain that would be acquired by lottery, are prohibited in France.
Any violation of the introduction of lotteries is punishable by three years imprisonment and a fine of €90,000. These penalties are increased to seven years’ imprisonment and a fine of €200 000 when the offence is committed by an organized gang. These penalties may also be accompanied by additional penalties.
In addition, articles L. 121-36 to L. 121-41 of French Consumption Code relating to advertising lotteries regulate advertising operations carried out by means of a written document which tend to create the hope of a win.
As an exception, the following lotteries are authorized under conditions :
– traditional lotteries organized in a restricted circle and only with a social, cultural, scientific, educational, sporting or social way, less than €20. These prizes cannot, under any circumstances, consist of money or be refunded. They may, however, consist of non-refundable tickets.
– lotteries for which no financial participation, of any kind, is requested from the players from the players.
In other words, lotteries that are not conditional on a purchase and that do not involve any out-of-pocket expenses for the participants are legal.
According to the terms of Articles 1 and 2 of Law No. 2010-476 of May 12, 2010 on the opening to competition and regulation of the online gambling sector, the operation of online gambling is placed under a regime of exclusive rights issued by the State. The technical regulation of this market is entrusted to the Online Gaming Regulatory Authority (ARJEL).
These games of money and chance are forbidden to minors.
Article 7 of the aforementioned law stipulates that any commercial communication in favor of a legally authorized gambling operator must include :
– accompanied by a warning message against excessive or pathological gambling, as well as a message referring to the information and assistance system set up through a telephone number.
– Prohibited in publications aimed at minors.
– prohibited in online public communication services intended for minors.
Anyone who issues or disseminates, by any means, a commercial communication that does not comply with these provisions is punished by €100,000 payment. The court may increase the amount of the fine to four times the amount of the advertising expenses devoted to the illegal operation.
9. TRADING
9.1 Stock market information
The dissemination of stock market information is governed by Ordinance no. 67-833 of September 28, 1967 establishing a Commission des Opérations de Bourse (C.O.B.) and relating to the information of holders of securities and the publicity of certain stock market transactions, by Law no. 66-537 of July 24, 1966 on commercial companies and its implementing decree no. 67-236 of March 23, 1967, and finally by Law no. 72-6 of January 3, 1972 relating to canvassing for financial, investment and insurance transactions.
9.2 Dissemination of stock market data
The company may propose the consultation of a history of its stock market prices, provided that this stock market information is accompanied by a precise time stamp and an indication of the source.
If it is a question of retransmission of prices broadcast by the server of the S.B.F., these prices are presented without comment.
If the stock exchange elements are not exhaustive, the company clearly indicates the nature of the extract presented (average price, possible weighting by volume etc.).
The company may not offer stock market advice on its own shares or on those of the group to which it belongs.
However, it may mention the existence of an external financial analysis.
More generally, the company does not display on its financial information kiosk any buying or selling advice concerning the securities it holds in its portfolio.
10. JOB OFFERS
It is forbidden to disseminate on a communication service accessible to the public online or by electronic means an insertion of services concerning job offers or careers and containing false allegations or likely to mislead, in particular on the free nature of this service, or as to the existence, the actual availability, the origin, the nature and the description of the job or the work at home offered, the remuneration and the ancillary benefits offered, the place of work. The penalty is one year’s imprisonment and a fine of €37 500 (Articles L.5331-3, L.5331-5 and L.5334-1 of French Work Code).
11. DECEPTIVE ADVERTISING – CONSUMER PROTECTION
The Provider of a website must ensure that the messages it broadcasts do not contain false elements (false advertising) or are likely to mislead (misleading advertising).
Indeed, articles L.121-1 and following of French Consumption Code define and prohibit any misleading commercial practice.
Comparative advertisements are regulated in particular by articles L.121-8 and following of the French Consumption Code.
The penalty can be up to two years’ imprisonment and/or a fine of €37 500 (Article L.213-1 of French Consumption Code), the amount of the fine can be increased to 50% of the total advertising expenditure constituting the offence (Article L.121-6 of French Consumption Code).
In addition, articles L. 121-16 and following of French Consumption Code specify that for all distance selling operations, the buyer of a product has a period of 7 days from the delivery of his order to return the product to the seller, for exchange or refund, without penalty except for the return costs. The exercise of this right of withdrawal is carried out with regard to the exceptions provided for by Article L.121-20-2 of French Consumption Code.
The law n° 92-60 of January 18, 1992 reinforcing the protection of the consumer completed in particular the provisions of article 7 of the law n° 72-1137 of December 22, 1972 relating to the protection of the consumers as regards canvassing and sale at residence by specifying that are also subjected to these provisions the engagements obtained following a canvassing by telephone and fax. This applies to “spam”, i.e. the technique of mass prospecting aimed at sending the same advertising message to a mailing list via a search engine without prior agreement.
For any offer of sale of a good or supply of services which is made at a distance to a consumer, the professional is held to indicate the name of his company, his telephone coordinates as well as the address of his seat and, if it is different, that of the establishment responsible for the offer (article L.121-18 of Consumption Code), as well as the name of the person considered as the Director of publication.
12. LEGAL PROVISIONS CONCERNING DRUGS
Article L.3421-4 of French Public Health Code states that incitement to the illegal use of drugs or drug trafficking, even if this incitement has not been followed up, or presenting these offences in a favourable light, is punishable by five years’ imprisonment and a fine of €75 000.
The same penalties apply to the provocation, even if not followed by effect, to the use of substances presented as having the effects of substances or plants classified as narcotics.
Article 222-37 of French Penal Code punishes the illicit transport, possession, offer, transfer, acquisition or use of narcotics with ten years’ imprisonment and a fine of €7500 000.
*The same penalties apply to facilitating, by any means, the illegal narcotics use, to have narcotics delivered by means of fictitious or complacent prescriptions, or to deliver narcotics on presentation of such prescriptions, knowing their fictitious or complacent nature.
The provocation of a minor to use narcotics is punishable by five years imprisonment and a fine of 100,000 euros, brought to seven years imprisonment and a fine of €150 000 if the minor is under 15 years of age (Article 227-18 of French Penal Code).
The provocation of a minor to drug trafficking is punishable by seven years’ imprisonment and a fine of 150,000 euros, rising to ten years’ imprisonment and a fine of 300,000 euros if the minor is under 15 years of age (article 227-18-1 of French Penal Code).
According to the terms of article 222-35 and following of French Penal Code, the illicit production or manufacture of
narcotics are punishable by twenty years of criminal imprisonment and a fine of €750 000 euros.
The illicit import or export of drugs is punishable by ten years imprisonment and a fine of €750 000 euros.
13. INFORMATION
13.1 Authentication of information
The source of the information must be clearly indicated and if it is a comment, the author must be named.
13.2 False information
According to article 322-14 of French Criminal Code, communicating or divulging false information with the aim of making people believe that a destruction, a degradation or a dangerous degradation for people is going to be or has been committed, or of communicating or divulging false information making people believe that a disaster has occurred and that it is likely to provoke the useless intervention of the emergency services, is punishable by two years of imprisonment and a fine of €30 000.
14. DISCRIMINATION
According to article 225-1 of French Criminal Code, any distinction made between individuals on the basis of their origin, sex, family situation, health status, disability, morals, political opinions, trade union activities, or their actual or supposed membership in a particular ethnic group, nation, race or religion constitutes discrimination.
Any distinction made between legal entities on the basis of the origin, sex, family status, state of health, disability, morals, political opinions, trade union activities, membership or non-membership, real or assumed, of a specific ethnic group, nation, race or religion of the members or certain members of these legal entities also constitutes discrimination.
Discrimination against a natural or legal person is punishable by three years’ imprisonment and a fine of 45,000 euros when it consists, in particular, in refusing to supply a good or service, in making the supply of a good or service subject to a condition based on one of the elements mentioned above.
15. INFRINGING AN INDIVIDUAL REPRESENTATION
publishing, by any means, a montage made with the words or image of a person without his or her consent, if it is not obvious that it is a montage or if it is not expressly mentioned, can be punished by one year’s imprisonment and a €15,000 fine (Article 226-8 of French Penal Code)
16. PROTECTION OF THE INDIVIDUAL
Voluntarily infringing on the privacy of others by means of any process is covered by articles 226-1 and following of French Penal Code.
17. INTELLECTUAL PROPERTY AND UNFAIR COMPETITION
The French Intellectual Property Code prohibits any reproduction of intellectual works without the consent of the author.
Likewise, any illicit use of a brand name constitutes an infringement, including in the websites metatags.
In addition, the software and underlying technology attached to the sites are protected and may only be used with the express consent of the rights holder.
Independently of the acts likely to constitute a counterfeit, any taking of rights belonging to others could be pursued under the title of unfair competition and parasitic acts, and lead to the questioning of the responsibility of the offender.
In particular, before inserting a deep link to a third party site, it is advisable to check whether such a link is legal, or to request the authorization of the target site, in order to prevent any act that could subsequently prove to constitute unfair competition.
18. PERSONAL DATA
In accordance with the law 78-17 of January 6, 1978 relating to data processing, the files and freedoms, any natural or legal person
natural or legal person collecting personal data, for free or for a fee, is required to make an ad hoc declaration of the automated processing of the data collection process.
For example, a simple e-mail address is considered as personal data and its collection must therefore be declared.
It will also be necessary to inform the persons whose data are collected of the purpose of the processing implemented, of rectification and, if necessary, of opposition to the data which concern them.
19. PERSONAL HEALTH DATA
The law n° 2002-303 of March 4, 2002 forces the persons exercising the activity of hosting personal health data to have an approval in accordance with the prescriptions of the article L 1111-8 of French Public Health Code.
WPScale reminds the Customer that it is up to him to refer to the list of approved hosting companies
La loi n° 2002-303 du 4 mars 2002 impose aux personnes exerçant l’activité d’hébergement de données de santé à caractère personnel de
(http://esante.gouv.fr/services/referentiels/securite/hebergeurs-agrees) for any hosting of personal health data..
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