17 Dec A step forward in the fight against fraudulent calls
On December 6, 2018, after 3 hours and 50 minutes of an intense debate, the members of the French Parliament, by 79 votes (representing almost all parties) against 1, adopted the bill of the UDI MP Christophe Naegelen, called Naegelen Bill, relating to the supervision of telephone marketing and the fight against fraudulent calls. We are reserving our remarks on telephone marketing for a future post and we are interested today in the fight against fraudulent calls, in this case towards value-added services, objects of articles 6 and 7 of this bill.
Article L. 224-46 – PRS operators may act
Article 6 modifies Articles L. 224-46, L. 224-47 and L. 224-51 of the Consumer Code. The current article L. 224-46 stipulates that the contracts between the premium rate service (PRS) operators and their service provider customers must include clauses stipulating, under pain of suspension of the PRS number concerned, or in case of reiteration, termination of the contract, that the publisher must inform the operator of any changes to be made to the PRS reverse directory (www.infosva.org).
To these provisions, the amendments made by Article 6 I A of the Naegelen Bill add the following grounds for suspension or termination: “1. If no real product or service is accessible at this number; 2. If the product or service accessible to this number is among those excluded by the operator under its ethical rules.” A remark on this text: the suspensions or cancellations provided seem, for the operator, optional:” … the suspension of access to the numbers concerned, which may be followed by the termination of the contract in case of reiteration, … “. It is not written that the suspension must be followed by a termination in case of reiteration.
Article L. 224-47 I – PRS operators must act
Article 6 IB of the Bill voted December 6 completely rewrites Article L. 224-47, the § I of which begins with the words: “The operator mentioned in the first paragraph of Article L. 224-43 suspend access to the number and, where applicable, perform the cancellation provided for in Article L. 224-46 in the following cases: “. The operator has no choice here. Is this reasonable? Are there any good faith people among PRS service providers operating services whose “one or more of the information in the tool is missing, inaccurate, out of date or incomplete“? It is certainly necessary to fight with force against abuses, but the voted text would place the operators in a very uncomfortable situation in the event of a venial error by a publisher in good faith.
Article L. 224-47 II – other operators may act
The § II of Article L. 224-47 voted on December 6 gives other operators in the value chain (the local loop operator of the calling party, the transit operator) the possibility, in case of inaction the operator of the PRS number concerned, to suspend the number or to cancel the contract, but this possibility is only offered after having informed the PRS operator. The text provides for consideration between operators that it does not consider towards publishers.
Article L. 224-47 III – Alert on a PRS via a post on the web
The § III of the article L. 224-47 voted on December 6 defines the alerting tool accessible from the website of the reverse directory of PRS (www.infosva.org). The consumer must be able to describe: “1. An inaccuracy on the information present in the tool; 2. A concern about the ethics of the associated service; 3. A problem relating to the contact to which the consumer must be able to address his complaints. “. This enumeration is welcome, but it deserves to be completed with regards to a major cause of PRS abuse: breaches of obligations or breaches of advertising prohibitions on PRS.
Article L. 224-51 – Alert on a PRS via a SMS to 33700
Finally, Article 6 of the Naegelen Bill concludes with an addition to Article L. 224-51 of the Code, which deals with another channel of alerts, those which are carried out by the sending by the consumer of a SMS to the short number 37700. This addition is the following: “This device also allows to certify alerts to ensure reliability and facilitate tracking. “. The idea of certifying the alerts seems excellent, but what exactly does this expression mean? Is it to authenticate the author of the report and / or verify the accuracy of its content?
What does certifying an alert mean?
The issuer of an SMS sent to 33700, targeted by the addition to Article L. 224-51, is a priori the holder or beneficiary of the mobile phone used to send the SMS. But the content of SMS is poor and unstructured, which makes the content of these alerts barely usable. The current infosva.org site alerting system, which is not covered by the Naegelen Bill certification process, implements two-factor authentication and certifies the alerts of voluntary signalling agents (i.e. that are agreeing to be contacted again). Would the proposed legislation not lead to the elimination of this choice left to the consumer, so that any alert can be certified? In any event, such an interpretation would lead to the authentication of the holder or the beneficiary of the telephone subscription used by the author of the report, failing to authenticate him. The contents of this second type of alerts are rich and structured by many questions with mandatory answers.
Whether the content of the alert is poor or rich, its verification is however a complex thing because, to be verified, the facts reported must either have been recorded in a non-contestable way or be reproduced in a non-contestable manner. If it is necessary to have the facts reproduced in indisputable conditions (for example by a bailiff) to certify the alert, it is an expensive procedure, the cost of which would even be exorbitant if it were to be applied to all the alerts. It also means that the report itself is not certifiable, so it is just a clue. If it is necessary for the content of the report to be certified, this implies that the facts have been undeniably recorded. There are of course many possibilities of building evidence on a smartphone: photographs, screen shots, recording of telephone conversations, … but these technical possibilities raise human factor and privacy issues: if the consumer records a conversation with a PRS service, should he notify his interlocutor beforehand?
A provisional conclusion on the certification of alerts would therefore be that the perpetrators of the reports (understood as the usual holders or beneficiaries of a telephone number) are already de facto certified, which the law could make mandatory, but that certifying that the content of an alert is very accurate seems a difficult goal to consider in the current state of the debate.
DGCCRF may ask the Court to exclude a PRS actor
Finally, Article 7 of the Naegelen Bill adds a paragraph to Article L524-3 of the Code, providing that the DGCCRF, the Directory general for consumer protection, competition and the repression of frauds “may ask the judicial authority to prescribe in summary proceedings or on request to the suppliers of a telephone service to the public, within the meaning of paragraph 7 of Article L. 32 of the Post and Electronic Communications Code, as well as to electronic communications operators, within the meaning of paragraph 6 of the same Article L. 32, using a value-added number, any proportionate measures to prevent damage or to stop damage caused by a value-added service “. On the one hand, this procedure would have the immense merit of giving a judicial, and not as today contractual, basis to the termination of contracts between the PRS operators and the service providers. This decision, which is difficult to be taken by an operator, can wait for the fifteen days that a summary procedure usually takes, followed by fifteen days of deliberations, themselves followed by the fifteen days of deadline of the injunction of the court to the operators. On the other hand, applied to the suspension of a number, a measure generally taken by the operator with a very short delay, but of little consequence because the service can restart immediately on another number, the implementation of the article 7 of the Bill would be too heavy and too slow.
The Naegelen Bill, which is not subject to the urgent procedure, must now be examined by the Senate, before a second reading by each assembly. Therefore, beyond the excellent work of the MPs, there remains room for improvement in the upcoming parliamentary session.