GIE Preventel manages a file listing the information relating to unpaid subscribers major telecommunications operators. Any registered person may be denied the opportunity to contract with a telephone operator. This is legal?
The considerable number of persons aggrieved by the file Preventel warrants a reminder of the legal framework laid down by the CNIL (1), his confrontation with the practices found (2) then the defenses in case of abusive FILING (3).
1) The legal framework laid down by the CNIL: Conditional permission
File Preventel was declared to the CNIL in 1996. On September 21, 2004, his regime has been clarified by a decision taken in plenary meeting, on the occasion of a request to lower the GIE 30 euros the amount of an unpaid can lead to an entry in the file.
Applying for the first time provisions of section 25 of the Act of 6 January 1978 "Computers and Liberties", the CNIL imposed its prior authorization to file Preventel treatment, noting that they were likely to exclude individuals from a contract.
On this occasion, the CNIL acknowledged the legitimacy of ensuring the absence of debts of a future customer to another operator, in order to prevent further arrears.
However, the CNIL simultaneously imposed a condition: the respect of measures of implementation such as to ensure the preservation of rights interests of the people. She also stated that only payment incidents "characterized" could be registered in a pooled basis.
2) The practices observed: surprises customers
In practice, customers are facing several difficulties.
Upon signing the contract, they are hardly aware of the possibility of being flagged for missing payments. The terms of purchase of telecom operators are no exception to the rule that they are particularly dense and difficult to read. In practice, most customers do give up, especially since they consider that no matter to choose between operators, or to negotiate: they take it or leave it!
At the time when a dispute over payment, the client is not warned that it is the roster Preventel. Sometimes only his eventual FILING he is recalled, banal mentioned between the lines of a claim.
The Registration occurs in stride, without any discussion with the client. In fact, it has no means to challenge the merits of the cause of his record in the file. There are allegations of administrative errors or hardware due to the operator but that would have led to an entry in the file Preventel.
In fact, when a person intends to sign a new contract with a different operator she learns she is listed in the file Preventel.
The consequences are severe. Either the client "doubtful" is asked a sum large deposit, or he is denied the right to contract with the new operator.
3) The means of defense in case of abusive FILING
To be unsubscribed file Preventel must show tenacity and patience, while remaining subject to the whim of his interlocutors. It is legitimate for the client who believes the actions of its operator wants to assert his rights in court.
Two conditions are necessary: it is necessary that the operator had infringed one of the obligations arising under the contract and the client shows the extent of the damage he has suffered.
Under the 3 rd paragraph of section 1134 of the Civil Code, the agreements must be performed in good faith: the operator is under an obligation of good faith.
In 2003, a district court partially granted the request of a client pursuing SFR abusive registration file Preventel (IT Bordeaux - November 25, 2003). However, the limited damages in the amount of 267 euros, appeared likely to discourage dissatisfied customers to act, given the costs inherent in the civil trial.
Since the law August 6, 2004 and the CNIL deliberation of September 21, 2004, the client should be able to claim ignorance by the operator of the conditions laid down for the occasion: first the absence of effective measures to ensure the preservation of its rights, on the other hand, the absence of "characterization" of the payment incident.
In other words, the CNIL asked the following rule: the customer should not be punished without being able to hear his case and defend themselves. Otherwise, it his right to a fair trial is denied him: the client is sanctioned by the legal person who hears case against him.
There's some interesting perspectives that would place the issue on the field of human rights.
The behavior of the operator can also be envisaged from the standpoint of criminal law.
Article 226-21 of the Penal Code punishes the abuse of the purpose for which data were collected. Failure to comply with rules issued by the CNIL as a condition for permission treatment is it constitutes a misappropriation within the meaning of that article?
Is it possible to see intentional acts, encouraged, organized or tolerated in order to exert psychological pressure on customers to obtain business benefits?
If so, this would allow plaintiffs to receive all the benefits of setting in motion the proceedings: economics and effectiveness of the investigative power of the criminal sanction.
However, the issue of assessing the damage remains difficult. As always, the damage is assessed by the supreme court and it is on the plaintiff to prove the extent.
Beyond the financial loss, the question of moral damages suffered because of the impossibility of having a mobile phone.
On 10 June 2009, the Constitutional Council enshrined the freedom of access to communication services to the public online as part of freedom of communication and expression in Article 11 of the Declaration Rights of Man and Citizen of 1789.
It can be argued that the right to have a mobile phone should be protected in the same way, as it is true that the exclusion threatens those who would be private and that this threat can be exploited for trade.
More than ever, the public interest requires the strict control and the poor registration Preventel warrant severe penalties for breaches.
Michel PASOTTI - Lawyer at the Paris Bar - Doctor of Economics - Paris, on 25/10/2009
