Newsletter n°3 (March 2024)
✨ ARTIFICIAL INTELLIGENCE ✨
➡️ Adoption of the European Regulation on Artificial Intelligence by the Member of the European Parliament
On March 13, 2024, MEPs approved the draft regulation on artificial intelligence with 523 votes in favor, 46 against and 49 abstentions. The draft regulation is now undergoing final verification by a lawyer-linguist, and is due to be formally adopted by the Council.
As a reminder, this draft regulation has the following objectives:
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to ensure that AI systems placed on the market are safe and respect existing legislation on fundamental rights, EU values, the rule of law and environmental sustainability;
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guarantee legal certainty to facilitate investment and innovation in the field of AI;
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strengthen governance and effective enforcement of existing legislation on safety requirements for AI systems and fundamental rights;
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facilitate the development of a single market for legal and safe AI applications, and prevent market fragmentation.
Failure to comply with the rules could result in fines ranging, depending on the size of the company and the infringement, from 7.5 million euros or 1.5% of sales (turnover) to 35 million euros or 7% of worldwide turnover.
The AI Regulation will enter into force 20 days after its publication in the Official Journal of the EU, and will be fully applicable 24 months after its entry into force, with the exception of:
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prohibited practices (6 months after coming into force) ;
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codes of practice (9 months);
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general-purpose AI rules, including governance (12 months);
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obligations for high-risk systems (36 months).
FIRSH tip: Companies covered by the scope of the AI Regulation should anticipate the deadlines set for obligations and prohibitions, and not wait for the deadline to comply with them in terms of applicable sanctions.
Draft or Regulation dated April 21, 2021 on Artificial Intelligence
➡️ CNIL recommendations on artificial intelligence
Following questions from several market players to the CNIL relating to the application of the GDPR to artificial intelligence, particularly since the emergence of generative AI systems, as well as a consultation with private and public market players, the CNIL has just published its first recommendations on the application of the GDPR to the development of artificial intelligence systems to help professionals reconcile innovation and respect for people’s rights.
These recommendations provide concrete answers, illustrated with examples, to the legal and technical issues involved in applying the GDPR to artificial intelligence. They take the form of practical fact sheets. However, the CNIL offers a summary of all the recommendations to remind all players of the main principles.
In the coming months, the CNIL will be supplementing these recommendations with other sheets, in particular relating to the legal basis of legitimate interest, rights management, information for data subjects, annotation and security during the development phase, the drafts of which will first be the subject of a public consultation.
Firsh tip: Firsh is currently advising a company that has developed an algorithmic facial recognition tool on its compliance with the Artificial Intelligence Regulation.
Recommendations of the CNIL on AI
➡️ Google fined 250 million euros by the French Competition Authority
In its decision of March 15, 2024, the French competition authority (Autorité de la concurrence) found that Google had mainly failed to comply with its commitment to negotiate “in good faith” with publishers in order to assess their remuneration in line with Directive 2019/790 establishing a right for press publishers, to which the company had been bound under the terms of a decision dated June 21, 2022.
In particular, the Authority found several breaches by Google following the July 2023 launch of its “Bard” artificial intelligence (AI) service (which became “Gemini” in February 2024), a conversational agent made available to users.
In addition, the Authority noted that this AI model had been trained and fed by content from publishers and news agencies, without their authorization or prior information to the Commission.
In addition, Google linked the use of publishers’ content by its AI service to the display of protected content on services such as Search, Discover and News.
As a result, the French Competition Authority has fined Alphabet Inc, Google LLC, Google Ireland Limited and Google France a total of 250 million euros, for failing to comply with the commitments made mandatory by decision no. 22-D-13 of June 21, 2022.
FIRSH tip: Companies should make their staff aware of the uses of artificial intelligence tools and the exploitation of any work that may be protected under intellectual property law through these tools.
✨ NEW TECHNOLOGIES ✨
➡️ Compliance with European digital regulations
Will the EU succeed in enforcing the new European texts aimed at regulating the digital market (DMA/DSA)?
The European Commission has initiated proceedings against Apple, Google and Meta (formerly Facebook) for breaches of competition rules under the new Market Regulation.
These American Internet giants have been in discussions for months about their compliance with the new rules, which came into force at the beginning of March.
What exactly are they accused of?
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Apple: restrictions that would prevent application developers from communicating free of charge with users of its iPhone smartphones and iPad tablets. (PS:💡The US government has also sued Apple for monopolistic practices related to these constraints).
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Meta (Facebook, Instagram): a breach of the rule requiring users’ consent to be sought before personal data from its various services can be combined for advertising profiling purposes (✨The product when it’s free is us, but you still have to have consented!).
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Google: because it allegedly favors its own price comparison service to the detriment of competitors, for example in hotel searches. PS: Google has already been fined 2.4 billion euros for this reason in 2017, but the remedies proposed were not deemed satisfactory.
With the DMA, the European Commission aims to act faster and more effectively to ensure competition in digital markets. The DMA (Digital Markets Act) regulation of September 14, 2022 is, along with the Digital Services Regulation (DSA), one of the European Union’s major digital projects. Gradually applicable since May 2, 2023, it came fully into force on March 6, 2024.
The twenty or so obligations and prohibitions it contains are now enforceable against digital giants (obligation to make instant messaging interoperable with competitors, prohibition on imposing a default web browser or search engine or self-preference…).
This regulation provides for fines of up to 20% of worldwide sales, in the event of serious and repeated infringement, with the option of imposing behavioral or structural corrective measures (threshold: 3 confirmed infringements in 8 years).
FIRSH tip: Like the RGPD, there is a period of discussion with the digital giants, and it is ongoing. The regulatory bodies must then enforce the texts voted … for a responsible European digital.
➡️ Liability of technical intermediaries
A company brought an interlocutory injunction against the host of the leboncoin.fr website, seeking to stop the dissemination of fraudulent ads usurping the company identity. The ads published on the site since March 2021 included its company name, RCS and IBAN, for the purpose of creating false quotes and orders. The Court of Appeal ordered to stop publishing these ads.
The Court of Cassation held that the injunction to the host to prohibit the dissemination of these advertisements was corresponding to subjecting it to a general obligation to monitor the information stored, insofar as this obligation placed an open-ended system on the host, covering any future advertisements, requiring it to make an independent assessment of the content of these advertisements.
The Court of cassation thus affirmed that, in application of article 6 of the French law on confidence in the digital economy of June 21, 2004, while the judicial authority could order the host or provider of access to online public communication services to take all appropriate measures to prevent or halt damage caused by the content of such a service, this could not go so far as to impose a general obligation of surveillance.
FIRSH tip: it is essential to define the legal status of the intermediary in order to properly analyze all the resulting responsibilities in mathematical terms.
Court of cassation, 27 March 2024, n° 22-21.586
✨ PERSONAL DATA ✨
➡️ Personal data security guide: new 2024 edition
The purpose of the Personal Data Security Guide is to provide a reminder of the security precautions to be taken. This new version restructures the guide and introduces new sheets, notably on artificial intelligence, mobile applications, cloud computing and application programming interfaces (APIs).
The guide also recalls the basic precautions that should be implemented, as well as measures designed to further strengthen data protection.
In particular, five new fact sheets have been created on : (i) cloud computing; (ii) mobile applications; (iii) artificial intelligence (AI); (iv) application programming interfaces (APIs); (v) data security management.
The guide is intended as a reference for data protection officers, information systems security managers, IT specialists and legal experts in their data security-related activities.
FIRSH is proud to assist its customers in securing the processing of their personal data.
Personal Data Security Guide of the CNIL dated 2024
➡️ Personal data leakage at France Travail (formerly Pôle Emploi)
“France Travail” (formerly “Pôle Emploi”) suffered a cyber-attack leading to a data leak that could affect 43 million people. The CNIL is working with the organization to ensure that those affected are properly informed, and has issued a few reminders to help them protect themselves.
On March 8, the CNIL was informed by “France Travail” and “Cap employ” of an intrusion into their information systems that could potentially have led to the extraction of data from 43 million users. This would have involved people registered on the jobseekers’ list or who have been registered over the last 20 years, as well as people with a candidate space on francetravail.fr.
This incident includes first and last names, social security numbers, France Travail identifiers, e-mail and postal addresses, and telephone numbers. Passwords and bank details were not affected by this cyber-act.
As a result of this leak, “France Travail” has been ordered to individually inform all persons likely to have been affected by this data leak.
At the same time, the CNIL has decided to carry out investigations in particular to determine whether the security measures implemented prior to the incident and in response to it were appropriate with regard to the obligations of the GDPR.
FIRSH tip: it is vital for companies to implement effective security measures and establish stringent processes in the event of a data leak.
✨ INTELLECTUAL PROPERTY✨
➡️ Trademark: Infringement proceedings and use in the course of business life
The case was between BFM TV and an advertising agency. BFM TV noticed that a billboard featured a poster with the following headline: “Les syndicats de police & BFM vous souhaite un bon enfumage 2019”. It also discovered that the advertising agency, which owned the billboard, had posted a photograph of the billboard on its Facebook page.
BFM TV, owner of the “BFM” trademark, sued the owner of the billboard for trademark infringement. BFM TV’s claims were dismissed on the grounds that the poster was not part of business life, even though it was used on a billboard belonging to an advertising professional, and that it was broadcast “in a restricted manner and for a given time, was satirical in nature, contained no product proposal, was not part of any economic activity and was not part of any commercial operation”.
The Cour of cassation recalled that it was necessary to determine whether the use of the trademark conferred an advantage of an economic nature. In this case, the Cour of cassation found that the poster in question did not fall within the realm of business practice, in that it was neither economic in nature nor aimed at obtaining a direct or indirect economic advantage. The Cour of cassation also affirmed that the poster in question did not fall within the area of business, that it was neither economic in nature nor aimed at obtaining a direct or indirect economic advantage. The Cour of cassation has also affirmed that the situation of the person being sued is irrelevant when the use of the trademark is not intrinsically economic.
Thus, the use of a trademark by a professional does not automatically lead to the characterization of use in the course of business life. It is still necessary for the professional to have received an economic benefit from this use.
FIRSH tip: companies are advised to obtain the prior advice of an expert in the field before proceeding with any use that would border on respect for third-party intellectual property rights.
Cour of cassation, Criminal Chamber, 27 February 2024, n° 23-81.563
✨ FAST FASHION ✨
➡️ Fast Fashion : a draft law in the pipeline !
What is Fast Fashion? Fast fashion, also known as “mode éphémère”, “mode éclair”, “mode jetable” or “mode express” in French, is characterized by the marketing of a very large number of new models and the almost constant renewal of collections.
This ephemeral fashion, which combines increased volumes, low prices, the creation of buying impulses and a constant need for renewal, has environmental, social and economic consequences.
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Environmental issues: the textile industry is responsible for almost 10% of global greenhouse gas (GHG) emissions, more than the aviation and maritime sectors combined, and could account for as much as 26% by 2050.
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Social issues: the textile industry is relocated to countries where labor is forced and often performed by children…
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Economic challenge: the French clothing sector is finding it difficult to cope with such competition (the number of jobs has fallen by a factor of three since 1990).
Texts already voted :
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the “Anti-waste” law of 2020 on the fight against waste and the circular economy (AGEC) – its decrees – has already given a major boost to the ecological transition, particularly in terms of limiting waste and preserving natural resources.
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the “Climate and Resilience” law of 2021, which introduced an environmental display system known as Eco-score.
The draft of law to reduce the environmental impact of the textile industry adopted by the French National Assembly includes several measures to reduce pollution:
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creation of an ecological malus: under the extended producer responsibility scheme, producers putting a high number of garment parts on the market will have to pay more for the cost of managing future waste.
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creation of bonuses for manufacturers complying with eco-design criteria, thanks to the surplus money recovered by the eco-organization.
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advertising ban on the commercial practice of “very rapid” renewal of clothing and accessories collections.
What next? The text has been sent to the Senate, and legal experts are also awaiting clarification, notably on the scope of the advertising ban.
Better production, better consumption, better reuse, better recycling: it’s everyone’s business!
FIRSH is proud to support its customers in the textile industry in complying with these new transitional regulations, as well as younger companies offering innovative products that optimize reuse and recycling.
✨ ACTUALITES « FIRSH » ✨
Firsh’s awards
In just one year, Firsh has entered the prestigious ranking of international business lawyers in copyright and trademark law. In addition to this achievement, which confirms the excellence of Firsh’s teams, whose expertise is especially recognized in complex international cases, and the renewed confidence of its clients who have followed it in this entrepreneurial adventure, Legal 500 recognizes Firsh’s driving values: Freedom, Equality and Justice.
Read more about Firsh’s contributions to the advancement of law and innovation:
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Claire Poirson’s participation in the launch of the 6th Promotion d’Orange, which offers a full range of support to 100 women entrepreneurs from the 4 corners of France.
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FIRSH celebrated its 1-year anniversary on March 8, 2024, and has almost 700 subscribers on its LinkedIn page!
In March, Firsh assisted clients with the following projects:
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Obtaining a ruling from the Bordeaux Court of Appeal overturning the 1st instance judgment in favor of our client, recognizing the absence of fraudulent trademark registration.
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Negotiation of a business contributor contract in the luxury cosmetics and perfumery sector.
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Filing of software trademarks with the French National Trademark Office (INPI).
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Arbitration proceedings relating to commercial contracts.
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Direct summons in criminal matters concerning intrusion and maintenance of third-party internal servers.
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Pre-litigation concerning copyright infringement in the field of decorative art and furniture.
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