Technical service providers: regulatory texts implementing Articles 34, 34-1 and 34-2 of Law no.1.383 for a Digital Principality

The three regulatory texts implementing articles 34, 34-1 and 34-2 of Law no. 1.383 (published in the Journal de Monaco n° 8575 of 28 January 2022) concern the following technical service providers:

• Host: 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 (Art. 34 Law no. 1.383).
• Access provider: person whose activity is to offer access to online public communication services (Art. 34 Law no. 1.383).
• Online platform operator: provider offering, on a professional basis, whether remunerated or not, an online public communication service based either on the classification or referencing, by means of algorithms, of content, goods or services offered or put online by third parties, or on the establishment of a relationship between several parties with a view to the sale of a good, the provision of a service or the exchange or sharing of a content, good or service (art. 34-1 Loi no. 1.383).[1].
• Provider of online consumer reviews: a provider whose activity consists, as a principal or accessory activity, for consideration or free of charge, in collecting, moderating or disseminating online consumer reviews (Art. 34-2 Law no. 1.383).

SUMMARY

♦ Sovereign Order no. 9.058 of 21 January 2022 implementing Article 34 of Law no. 1.383 of 2 August 2011 for a Digital Principality, as amended. (hosting and access provider):

Art. 34 of Law no. 1.383 requires hosting providers (mentioned in art. 29) and access providers (mentioned in art. 31) to hold and keep data likely to allow the identification of anyone who has contributed to the creation of the content or one of the contents of the services they provide. The judicial authority may request the communication of such data.

Sovereign Order n° 9.058 defines the said data (art. 3), sets their retention period at 1 year, the starting point of which depends on the type of data (art. 5), as well as the storage conditions (art. 6): storage must be carried out in compliance with the provisions of Law n° 1.165, in particular as regards the provisions relating to the security of information; the storage conditions must enable the data to be extracted as quickly as possible in order to respond to a request from the judicial and administrative authorities.

♦ Ministerial Order no. 2022-40 of 21 January 2022 implementing article 34-1 of law n° 1.383 of 2 August 2011 for a Digital Principality, as amended. (online platform operator):

Article 34-1 of Law no. 1383, created by Law no. 1. 482 of 17 December 2019, requires the online platform operator to provide users and consumers with fair, clear and transparent information on the general terms and conditions of use of the intermediation service offered, on the terms and conditions for referencing, classifying and dereferencing the content, goods or services to which this service provides access, on the existence of a contractual relationship, a capital link or remuneration for its benefit when they influence the ranking or referencing of the content, goods or services offered or put online, on the quality of the advertiser and the rights and obligations of the parties in civil and fiscal matters, when consumers are put in contact with professionals or non-professionals.

The Ministerial Order n° 2022-40 specifies the conditions of application, taking into account the nature of the activity of the online platform operators:

• All online platform operators: specific section specifying the terms and conditions for referencing, dereferencing and classifying content and offers of goods and services (art. 1);
• Online platform operator whose activity involves putting several parties in contact with each other with a view to selling a good, providing a service or exchanging or sharing content, goods or services: specific information via a section that is directly and easily accessible from all pages of the site, without the need for the user to identify himself (Art. 2);
• Operator of an online platform which puts professionals in contact with consumers and enables the conclusion of a contract of sale or provision of a service: provision to these professionals of a secure digital space necessary for the communication of information prior to the sale of a good or the provision of a service, as provided for in Article 5 of Law No. 1.383, created and administered by the operator in accordance with procedures guaranteeing the security and integrity of the data, their availability and accessibility (Art. 3).
• Online platform operator whose activity consists in the provision of information allowing the comparison of prices and characteristics of goods and services offered by professionals: the information communicated to consumers concerning the elements of this comparison and what constitutes advertising within the meaning of Article 12 of Act No. 1.383 are established, where appropriate and depending on the nature of their activity, in provisions specific to each of them (Art. 4).

♦ Ministerial Order no. 2022-41 of 21 January 2022 implementing Article 34-2 of Law No. 1.383 of 2 August 2011 for a Digital Principality, as amended. (Provider of online opinions from consumers)

Article 34-2 of Act No. 1383, created by Act No. 1.482 of 17 December 2019, requires online review providers (without prejudice to the information obligations set out in Articles 5, 6, 8 and 34-1) to provide users with fair, clear and transparent information on the publication and processing of online reviews:

• Specification of whether or not these notices are subject to control and, if so, the main characteristics of the control implemented.
• Display of the date of the notice and any updates.
• Informing consumers whose online review has not been published of the reasons for its rejection.

Providers of online reviews from consumers must implement a free feature enabling those responsible for products or services that are the subject of an online review to report any doubts about the authenticity of that review to the provider, provided that the report is substantiated.

Ministerial Order 2022-41 defines the "online notice" [2] (Art. 1) and sets out the procedures and content of the information to be provided (Art. 2).

The provider who exercises control over the notices must ensure that the processing of personal data carried out in this context complies with the regulations in force on the protection of personal data (see our related publication > Bill No. 1054 on the protection of personal data: a long-awaited reform), and provide additional information in a specific, easily accessible section (Art. 3).

NOTES

[1] Art. 34-1 covers: on the one hand, online communication services that allow users and consumers to access other online services: search engines (Google, Yahoo, Bing, etc.), price aggregators or comparators (Twenga, Go Voyage, etc.); on the other hand, marketplaces that bring together buyers and sellers (Amazon, eBay, Airbnb, Leboncoin, etc.) or people wishing to exchange a good or service (Blablacar for carpooling, etc.); application shops offering for sale what others have designed and can only sell. ) or people wishing to exchange a good or service (Blablacar for carpooling, etc.), application shops offering for sale what others have designed and can only sell through these shops (Apple Store, Google Play), content sharing sites such as social networks (Facebook, Instagram, etc.).

[2] Art. 1 Ministerial Decree 2022-41: "Within the meaning of Article 34-2 of the aforementioned Act No. 1.383 of 2 August 2011, as amended, "online opinion" means the expression of a consumer's opinion on his or her consumption experience by means of any element of assessment, whether qualitative or quantitative. The consumer experience is understood to be whether or not the consumer has purchased the good or service for which he or she is providing a review. User referrals, user recommendations of online reviews and expert reviews shall not be considered as online reviews within the meaning of Article 34-2.