Why is it important to take care of your brand’s e-reputation?

Internet is the kingdom of free speech. And as in any good kingdom, there is still a power in place – in this case, the legislator – who ensures that the reputation of others is not compromised by the discrediting of some. Any comments made by Internet users may not infringe the rights of third parties. Even when the act of denigration is generated automatically by a search engine.

oogle’s Goperating phisolophy, based on simplicity, speed and relevance, has enabled this search engine to become the most widely used Web tool in the world, and even more so in France, where it is used by 9 out of 10 Internet users. Google therefore plays a considerable role in brand awareness, whether the information reached through its technology is positive or negative. One of its features, Google Suggest, which appeared in France in 2008, has had devastating effects for several companies.

A list of 10 suggestions automatically generated

As its name indicates, Google Suggest allows the user, when he enters a term in the search bar, to be offered in real time a list of 10 search suggestions. This feature, which aims to save time for the user – simplicity and speed of Google – is presented as an automatic system, the 10 suggestions refer to the 10 most frequent previous searches of Internet users for relevance.

This feature has caused difficulties when companies have found that their names could be associated, depending on the suggestions presented to the user, with terms with negative connotations such as “scam” or “rip-off”. By this way, Google Suggest was directly directing Internet users to comments made on discussion forums.

A turbulent evolution of jurisprudence and the consecration of the right to be forgotten

Despite the high stakes presented by the ” Google Suggest” litigation, the case law has been particularly fluctuating and has constantly moved from one basis to another to justify its decisions, finally stabilizing as of 2014.

Google was initially called to order by the Courts on the basis of the law on the press of July 29, 1881 (defamation or insult), which ordered it to :

• mention on its home page and in the query system a sufficiently clear and legible warning, specifying how the list of its 10 suggestions is established (see not. CA Paris, December 9, 2009, n° 09/13133) ;
• remove the association of the company’s name with the term “escroquerie” or “scam” in its Google Suggest feature (see not. TGI Paris, ref. 10 July 2009, n° 09/55969 ; TGI Paris, 4 December 2009, n° 09/13239 ; TGI Paris, 8 September 2010, n° 10/07440).

Subsequently, in a decision dated June 19, 2013, the ‘Cour de cassation’ put a stop to the application of the law of July 29, 1881, by holding that when ” the functionality leading to the criticized reconciliation is the result of a purely automatic process in its operation and random in its results “ this excludes any willingness to make the statements at issue and therefore any liability (Cass. 1st civ., June 19, 2013, n°12-17.591).

In addition, the same year, the Tribunal de Grande Instance de Paris (TGI Paris, 17th ch. Civ., October 23, 2013, no. 11/07439) has, on the basis of civil liability (former articles 1382 and 1382 of the Civil Code), sanctioned Google for the association of the terms “sect” or “swindler” to a person on Google Suggest (now enshrined in articles 1240 and 1241 of the Civil Code), failing to be able to rely on the law of July 29, 1881 repressing press offenses. However, this basis has been strongly criticized by the doctrine.

Finally, the  ‘Tribunal de commerce de Paris’ has ordered Google for the first time to remove suggestions with negative connotations from its Google Suggest feature on the basis of the law ” Information technology and freedom ” of January 6, 1978, and more precisely the right of opposition, considering that the association of terms in the tools “Google Suggest” or “associated searches” “constitutes a processing of personal data, since it is a “communication by transmission” and a “dissemination” of such data in the sense provided by the law ” (T. com. Paris, 1st ch., January 28, 2014, n° 2013000519).

In turn, the European Court of Justice also ruled in a judgment of May 13, 2014, where it upheld Google’s characterization as a controller within the meaning of Directive 95/46/EC on the protection of personal data, so that the latter was obliged to comply with the de-indexing requests (CJEU, May 13, 2014, Case C-131/12).

It is following these decisions that the case law concerning the right to object, or the right to be forgotten, on the basis of the French Data Protection Act and the European Directive began to develop.

Since then, digital right to be forgotten digital is an established right, officially enshrined in the General Data Protection Regulation (Regulation (EU) 2016/679 of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data) and by the Acts as amended following its coming into force, including the Data Protection Act.

However, only natural persons can benefit from the right to be forgotten. Legal persons are excluded (Regulation (EU) 2016/679, recital 14 : ” The protection afforded by this Regulation should apply to natural persons, regardless of their nationality or place of residence, with regard to the processing of their personal data. This Regulation does not cover the processing of personal data concerning legal personsand in particular companies with legal personality, including the name, legal form and contact details of the legal entity. “), so that companies are still confined to the more general grounds for asserting their rights, namely the civil liability enshrined in the new Article 1240 of the Civil Code, which is not always obvious.

A ” meeting place for consumers and professionals “

In terms of advice

The site “Les arnaques.com” has also been the subject of proceedings, as companies do not like to see their name appear on this forum intended to reveal scams…

The association behind the LesArnarques.com website hosted a forum where Internet users could exchange information about their respective experiences and the difficulties they had to face in their commercial relationship with a particular professional.

Thus, many comments appearing on this forum could be perceived as damaging the reputation of the companies or professionals concerned.

However, the Courts have refused to condemn www.lesarnaques.com because of the link between the name of its site and the name of a company (TGI Paris, 3rd ch., 1st sect., November 22, 2012, n°10/17057).

The Tribunal de Grande Instance de Paris considered that the name of the site is certainly provocative and catchy, but it is attributed to a meeting space between consumers and certain professionals, which allows for information and exchange. It was even considered that this site “It cannot therefore be claimed that the association between the contributions of Internet users, even when they are aimed at a professional by name and independently of their content, and the deliberately provocative name of the site constitutes in itself an act of denigration on the sole pretext of this association between the name of the site and that of the company targeted “.

In addition, the Court also denied claims under the former Article 1382 of the Civil Code for ” the possibly denigrating remarks held by Internet users on the forum since the association LESARNAQUES.COM is held only of an obligation of prompt withdrawal after notification because of its quality of host. “

In a decision dated January 28, 2015, the ‘Cour d’appel de Paris’ confirmed that the association’s liability must be assessed in its capacity as hosting provider and not a publisher, ” since the very purpose of the site is to put online, without sorting and therefore remaining neutral in their storage, the messages of Internet users ” (CA Paris, January 28, 2015, No. 13/13818).

In terms of rating

The Yuka mobile rating application offered by the company YUCA SAS, which allows consumers to scan products for their characteristics, has also been the subject of a dispute brought by charcuterie manufacturers, SAS MONT DE LA COSTE.

Through an algorithm, the application assigns a score and an appreciation, particularly for food products, according to their composition.
In this case, the application drew consumers’ attention to the nitrite and nitrate content by advising them not to buy deli meats with nitrate additives. A petition to ban nitrites and nitrates in connection with dry sausage products manufactured by SAS MONT DE LA COSTE was specifically disseminated by the YUKA application.
Believing that it was seriously harming its economic activity, the MONT DE LA COSTE company sued the YUCA company for unfair competition.

In a judgment dated September 24, 2021 (TC Brive-la-Gaillarde, September 24, 2021, No. 2021F00036), the ‘Tribunal de commerce de Brive-la-Gaillarde’ granted the request of MONT DE LA COSTE and condemned YUCA for deceptive commercial practices and denigration.

A commercial practice is qualified as misleading when it is based on false information or information likely to mislead the consumer on the essential qualities of the good or service, or when it provides ambiguous substantial information (Articles L121-1 and L121-3 of the Consumer Code).

The Court rejected the defendant’s argument that the direct link with the trader and the sale of the products was not established, recalling that such a practice can be characterized in the absence of any relationship between the author of the disputed practice and its recipient.

As to the deceptive nature of the practice, the court found that ” the debate is not about whether a food is criticized or rated, nor is it about how well or how poorly the charcuterie in question is rated “and considers that the company YUCA is, in the name of freedom of expression, entitled to rate products in accordance with the scale of its application.

However, according to the judges, the information made available to users, such as statements, particularly regarding the impact on health, must be complete, reliable and unambiguous for them, especially since the YUKA application has an established reputation.

However, for the Court, the application is not content with assigning a rating and also warns the consumer about the existence of a health risk of these products. In this case, the first page of the homepage of the rated products stated “Additives promoting the development of colorectal and stomach cancer”, leading the consumer to believe that there was a risk of exposure to fatal diseases.

While it is not disputed that the offending additives may present a degree of dangerousness, the fact remains that they are authorized, information that the application fails to mention in a legible and easily accessible way.
The Court considers that the application did not show measure in its assertions so that the consumer had not received the essential information likely to contradict or at least qualify those received by SAS YUCA to form his own opinion.

Consequently, the Court will retain the qualification of unfair practices by action and omission of the company YUCA towards SAS MONT DE LA COSTE.

In order to characterize the denigration, the Court recalls that the reasoning in matters of deceptive commercial practice is transposable and specifies that the YUKA application does not rest on a sufficient factual basis allowing it to express itself with measure and that  ” by selecting its sources, [YUKA] does not provide more reassuring information for the consumer, which it should have done in order to rebalance the scientific reality and to inform the user in a complete and balanced way about the risks incurred by the absorption of nitrate additives “.

Putting your brand under surveillance, a solution ?

Even if companies can find solutions that allow them to avoid being wrongly associated with a particularly unpleasant term, it is still imperative to keep an eye on your brand to be notified of such associations as soon as possible.

This is all the more important considering the fact that, today, 9 out of 10 Internet users use a search engine like Google to get information, especially about the companies or professionals with whom they may or may not want to rent commercial links, a choice that will inevitably be influenced by what they find on this search engine.

In terms of consumer habits, in the face of the strong trend to consume more ethically, mobile shopping apps directly influence consumer choices and have a significant impact on a brand’s reputation. According to YUCA’s 2019 impact study, 92% of users repost products when they are rated red in the app. However, the number of users of the application is around 20 million according to the company’s press kit(https://yuka.io/wp-content/uploads/presskit/Yuka-dossier-de-presse.pdf).

There are also, for a few years, companies specialized in cleaning up the e-reputation of companies, in particular by deleting pages or images on Google, by setting up monitoring and by creating positive content to counterbalance the negative content and make it less visible.