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24 February 2023

GDPR and cancellation of a website design contract


Associate lawyer

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On January 12, 2023, the Grenoble Court of Appeal annulled a website creation contract on grounds relating to the General Data Protection Regulation (“GDPR“). As a reminder, this regulation brings greater transparency and control over your personal data. Indeed, it imposes numerous obligations on those responsible for processing your data, including providing certain information or collecting your consent, in relation to said processing.

The ruling is innovative, in that it is the first time that compliance with the GDPR has been invoked in order to breach a website creation contract. Indeed, the case concerned the contract for the creation, installation and maintenance of a website between a customer and a web agency. Not satisfied with the website, the customer asked for the contract to be terminated, which was refused by the agency. He then decided to stop paying the agency the monthly instalments, which is why the agency decided to take the matter to court.

After being condemned in the first instance, the customer appealed, this time raising arguments based on the GDPR. Indeed, it was found that cookies installed on the site were collecting users’ personal data. Not only was this collection contrary to the GDPR, but there was no contractual clause informing the customer of the existence of software enabling the installation of said cookies. On the other hand, it was clearly stated in the contract that the customer was made responsible for any collection and use of personal data.

In short, the website was illegally collecting personal data, without the customer’s knowledge, but on his behalf and under his responsibility.

The court therefore ruled that the web agency had failed to inform the customer of an essential element relating to the site, and that the design contract was null and void, since there had been an error as to the essential qualities of the website. In fact, if the customer had known that the site collected personal data and that he would be held responsible for it, he would not have contracted with the web agency, or at least not under the same conditions.

We can now wonder whether the same decision could be handed down in Belgium, the Grenoble Court of Appeal having annulled the contract on the basis of articles 1130 et seq. of the French Civil Code.

We can answer in the affirmative, since articles 5.33 and 5.34 of the new Belgian Civil Code indicate that error does indeed constitute a defect in consent, and can therefore be a cause for nullity of the contract. Whereas the French Civil Code refers to an error concerning the essential qualities of the service due, the new Belgian Civil Code designates error as that which concerns a determining characteristic of the subject matter of the contract.

In conclusion, if you are not satisfied with your website creation contract and wish to contest it, you can contact our law firm.

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