Updated: Sept. 25, 2012 (Initial publication: May 17, 2010)
Sectorial Analysis
II-4.5: The First Civil Chamber of the ‘Cour de cassation’ (French Court of Cassation) affirms in a December 19, 2009 decision that an Internet Service Provider’s obligation to provide services to its subscribers is a strict liability to perform (‘res ipsa loquitur’)
http://www.thejournalofregulation.com/spip.php?article238
Main information
A contract between Free (a French Internet Service Provider) and one of its subscribers contained a clause stipulating that access to audiovisual services was conditional upon the eligibility of the user’s telephone line for such services. The Court of Cassation deems that except in cases of force majeure, such a clause does not exempt the service provider from his strict liability to provide such services
Context and Summary
This judgement was quashed by the Première Chambre Civile de la Cour de Cassation (First Civil Chamber of the Court of Cassation) on the grounds that Internet Service Providers are “held to a strict liability to perform (res ipsa loquitur) as to the services provided,” and that “the technical failure, albeit due to a third-party, did not represent an exemption from this strict liability to perform”.
Brief commentary
This judicial decision sheds light on the still-shadowy relationship between regulatory law and contract law. First of all, one might have though that, according to French common law, the obliged party was held to a best effort undertaking, that Free did not commit a fault since it has no power over the ‘last kilometre’ (or ‘last mile’) and the technical deficiency is due to a third-party (France Telecom). Furthermore, the client was perfectly informed of the condition that his telephone line had to be eligible for such services, especially audiovisual services, in order to benefit from them. Therefore, contract law seems unable to justify the Court’s decision. But, if one looks to regulatory law, we can understand that the key notion is that of access.
Indeed, if we take the very classic pattern of “essential infrastructures” and transportation networks—and Internet and audiovisual networks fall within this category—what is essential is access rights, which are subjective rights granted by the Law, and merely made tangible by contracts that are supervised by regulators via their exercise of their arbitration powers.
In such conditions, except in the case of force majeure, no clause in a subscription contract can exonerate the service provider from his essential obligation of granting access, since this would render the subscriber’s right to access void of any substance. Therefore, this decision shows that when contracts, even when they are not evaluated by regulators but only submitted to review by ordinary judges, are read through the prism of regulation, which greatly influences and reinvigorates the branch of law that is contract law.
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