It was the last chance QPC for the e-commerce site Wish, delisted for nearly a year from search engines in France.
On October 21, 2022, the Constitutional Council declared the legislative provisions on which the DGCCRF relied to order the delisting of the Wish site and application to be constitutional. This decision therefore puts an end to the priority question of constitutionality raised by Wish and Google.
The e-commerce site of American origin has disappeared for almost a year from search engines and application stores at the request of the French fraud prevention services which had noted the presence of non-compliant and dangerous products. on the merchant site.
Wish joined by Google in the battle
Wish was quick to retaliate, taking the case to the administrative court and then to the Council of State. Google, one of the search engines concerned by this delisting order, also joined the priority question of constitutionality transmitted to the Constitutional Council. Wish and Google maintained that this delisting posed a problem in particular with regard to “the principles of freedom of expression and freedom of enterprise”.
The Constitutional Council however brushed aside this argument, considering that the decision of the DGCCRF was indeed in conformity with the Constitution “with regard to the objective of general interest pursued by these provisions and the procedural guarantees and proportionality which they provide “.
Strong sanctioning power
This decision of the Constitutional Council validates, at the same time, the powers of sanction of the DGCCRF to “fight more effectively against illicit commercial practices on the Internet”. The DGCCRF has in fact held a “digital injunction” power since 2020. This means that it can “order, in a graduated manner, when it finds manifestly illegal content online and when the professional does not is not identifiable or does not comply with a first request, to cease its practices, the display of a warning message, the delisting or the restriction of access to a site or a mobile application, or the blocking of “a domain name” specifies the Constitutional Council in a press release.
This unprecedented decision in France and in Europe came after two years of investigations between 2018 and 2020. The DGCCRF noted “the persistence of the presence of non-compliant and dangerous products on the sales site and the Wish mobile application”.
Wish is the first to pay the costs, but this digital injunction power may be used again in the future to deprive other illegal e-commerce platforms of visibility and revenue.