Paris, 30 March 2022 – Sherpa and ActionAid argued that they could take action against the multinational on the basis of deceiving commercial practices. The French supreme court (Cour de cassation) rejected their appeal, and confirmed the cancellation of the electronics giant’s indictment. The CSOs denounce a restriction of their ability to take legal action on this ground, which is very ill-timed as corporate fairwashing is intensifying.
Very present in Asia, Samsung boasts of being a socially responsible corporate citizen in widely distributed communication materials. However, it has been accused in numerous reports of serious violations of workers’ rights in its factories in China, Korea and Vietnam. Investigations carried out by several NGOs on the field have shown that workers, mainly women, are facing serious health risks due to chronic exposure to toxic products.
Faced with the flagrant difference between these ethical commitments and the reality of the employees’ working conditions, Sherpa and ActionAid France filed a complaint, considering that this commercial strategy amounted to fairwashing and constituted a deceptive commercial practice. After its indictment, Samsung France, subsidiary of Samsung Electronics Co. Lrd, had contested the possibility for the CSOs to take legal action on this ground, pointing out that they did not have the approval specifically required in consumer cases. The appeal judges declared their claim inadmissible and annulled the indictment of Samsung France. The CSOs appealed to the Supreme Court.
The Court has just confirmed the previous decision. Judges even went a bit further : by ruling that the appeal to the supreme court is not open, and by condemning the CSOs to pay part of Samsung’s legal costs, they implicitly signal that the solution is now established.
“This caselaw seriously hinders access to justice” explains Sandra Cossart, Executive Director of Sherpa. “These days, judges have a restrictive interpretation of the possibility for CSOs to act before criminal courts. However, these actions are essential for the defence of certain public interest causes – that are often hindered by political considerations, or for certain victims – who are not in a position to take legal action”.
Since criminal proceedings for deceptive commercial practices seem to be reserved for a limited number of NGOs with special approval, this decision only confirms that multinationals can profit, without too much concern, from CSR marketing campaigns concerning ethical commitments that they do not respect in practice.
However, all hope is not lost: the complaint filed against Samsung on the same legal ground in 2021 by UFC-Que choisir, a French consumer organisation approved for those cases, is still ongoing and could lead to a court ruling.
Moreover, the basis of deceptive commercial practices is also at the heart of another legal action to sanction fairwashing, initiated in 2022 this time before a civil court, against TotalEnergies by other French CSOs.
At present, image laundering is not specifically punishable as such under French law.
For Salma Lamqaddam, Campaigner at ActionAid France: “It is urgent to regulate the activities of transnational corporations and to force companies claiming to have social missions to effectively control the activities along their supply chains. We will continue to mobilise so that the legal framework evolves at the European and international level in order to oblige multinationals to respect the rights and dignity of workers throughout the planet.“