by Alexandre Menais, Marie Marcoux and Sophie des Courtis
The processing of personal data in France is under the control of the CNIL (Commission Nationale de l’Informatique et des Libertés), the National Commission for Data Processing and Liberties. Pursuant to the Law n° 78-17 dated 6 January 1978 (hereafter the "Law"), the processing of personal data encompasses any set of operations which is performed upon personal data by automatic means relative to the collection, recording, development, modification, storage and destruction and any set of operations of the same nature dealing with the usage of files or data bases and interconnexions, consultations or communications of personal data.
The Law states that any automatic processing of personal data on behalf of parties other than the State, public establishments, territorial authorities, or private legal entity managing a public service, must be declared prior to its implementation to the CNIL.
1. MANDATORY FILING
2. Declaration to the CNIL
Two kinds of declarations exist, the normal declaration ("déclaration ordinaire") and the simplified declaration ("déclaration simplifiée"). A simplified declaration may be chosen only if the data processing corresponds to one of the approximate 40 standard processing defined by the CNIL as not infringing privacy or liberties. For instance, employee databases do not correspond to a standard norm, and therefore a normal declaration will be necessary.
The declaration must be completed by the entity implementing such processing, and responses to a certain number of questions must be supplemented by specific exhibits and filed with the CNIL in three copies, either by registered mail with return receipt requested, or by direct filing with the CNIL against receipt. The filing is free.
The duration of database must be disclosed in the application, and shall be limited to the time the information is necessary. This time limit depends on the nature of the data. The personal data processed should also be limited to information that is necessary and must not be excessive for the purposes for which it is being processed.
In practice, a declaration must be sent to the CNIL before the commencement of the operation. The CNIL will check if it has been properly completed and, in the affirmative, deliver a receipt. Such receipt permits the commencement of the operation, but does not prevent the CNIL from carrying out checks during the operation. Indeed, Article 17 of the Law provides that such registration does not exclude the liability of the filing company with respect to the processing of data.
Please note that subsequent changes to the data processing must be declared to the CNIL, using the same declaration form ("déclaration de modification").
1.2 Transfer to foreign countries
The transfer of data to a European country does not raise any specific problem. However, countries outside the European Union, such as the United States, are considered by the CNIL as not providing a high enough standard of protection regarding personal data. Thus, the CNIL requests that the applicant describes all the measures taken to oblige the recipient to comply with the principles held in the Law and the Convention n°108 of the European Council (to which France is a party).
To this end, the CNIL requests that an executed contract between the French and the non-EU entities be joined to the declaration, whereby these entities undertake to abide by the principles of French law. In the absence of such agreement, the CNIL is requesting additional information, and does not send the acknowledgement of receipt.
However, if the data transferred outside the EU, are only transferred to the United States, the execution of a data transfer agreement may be avoided if the American recipient participates to the "Safe Harbor policy" implemented by the U.S. Department of Commerce (for information please refer to its web site http://www.export.gov/safeharbor/).
2. ADDITIONAL LEGAL REQUIREMENTS
The Law also states additional requirements.
Pursuant to the Law, the processing of personal data must be carried out fairly. The fair processing rules require the company, either before or at the time of obtaining the information, to:
- ensure that the data subject knows that the company has access to his/her personal data;
- inform the data subject of the purposes for which his/her data may be used and of any transfer of the information to a third party;
- inform the data subject that the storage of the data will be made in a secure area;
- ensure that the data subject is aware of the obligatory or optional nature of answers, the consequence of failure to answer, the people or companies to whom the information is addressed, his/her right to access, to object to, to rectify and to delete information.
2.2 Right of Access
Pursuant to Article 34 of the Law, data subjects benefit from a right of access and rectification authorising any individual justifying his or her identity to question the person responsible of the data processing, to determine whether such processing involves personal data concerning him or her, and, in the affirmative, to obtain access thereto.
This person may require the correction, addition, clarification, updating or withdrawal of data which concerns him or her that is inaccurate, incomplete, ambiguous, outdated and object to the acquisition, use, disclosure or storage of his/her data.
2.3 Sensitive data
The consent of the data subject to the registration and use of the database is not required unless the personal data deals with certain so-called "sensitive information" regarding, for instance, racial origins, political, philosophical and religious opinions, and membership of unions.
2.4 Storage of the data
Personal data must not be stored by name beyond the period authorised. The term of the storage depends upon the nature and the purpose of each personal data processing operation. The Law also provides for security measures to ensure that unauthorised processing of personal data does not occur, and to protect data from any deterioration, damage or communication, to any unauthorised third party.
2.5 Specific labour law requirements
According to Article L432-2-1 of the Labour Code, when an employer intends to automate the managing of human resources in the company, such employer must inform the Workers' Council (required in all companies with 50 employees or more) thereon prior to the implementation of the data processing, whether the data is obtained or not by questionnaire.
In addition, if the system implements a new technology within the company, or if it is intended to enable the monitoring or control of the employees' activities within the company, the Worker's Council must be informed and consulted prior to the implementing of such procedure or technique.
The Workers' Council submits its position which is non-binding upon the company, subject to respecting legal requirements regarding the data collected. There is no consultation requirement in companies which do not have a Workers' Council.
Please also note that the use of Social Security numbers is restricted, and that this identification number may only be used by employers to pay applicable fees to social security, health and retirement organisations.
2.6 Specific financial requirements
Regarding the recording of telephone conversations dealing with transactions made by banks and credit institutions, the circular n°99/262 of the AFB, the French Banks Association, provides that an authorisation from the SGDN, a French governmental institution, is required pursuant to the provisions of the French Criminal Code. Moreover, when such an operation is subject to automatic processing, it must comply with the provisions of the Law set out above.
As mentioned above, the person responsible for managing the data processing and complying with applicable law is the person / entity implementing the data processing, which means the person / entity at the origin of such data processing.
Violations of the Law fall within the provisions of the criminal code which provides that companies can be declared criminally liable, and are punishable by fines five times greater than those applicable to individuals, and specific sanctions shall apply such as the winding up of the company, the exclusion from public procurements or the publication of the court decision.
The main sanctions are as follows:
- Failure to declare a data base to the CNIL is punishable by up to three years' imprisonment and a € 45,000 fine;
- Fraudulent or unfair collection of information or keeping the information against the legitimate will of any person is punishable by up to five years' imprisonment and a € 300,000 fine;
- Storing sensitive information without the consent of the data subject is punishable by up to five years' imprisonment and a € 300,000 fine;
- Keeping information beyond the date stated in the declaration and without the consent of the CNIL is punishable by up to three years' imprisonment and a € 45,000 fine, unless this storage is made only for historic statistic or scientific purposes;
- Failure to inform data subjects of their right to refuse answer certain questions and their rights of access and rectification of data is punishable by a € 1500 fine;
- Failure to provide for the security of processing information is punishable by up to five years' imprisonment and a € 300,000 fine;
- The unauthorized disclosure of information which could cause harm to a data subject's private life or reputation without his/her prior consent is punishable by up to one year imprisonment and a € 15,000 fine;
- The use of data for purposes other than those stated in the declaration is punishable by up to five years' imprisonment and a € 300,000 fine;
- The refusal of access to personal data or of a request for rectification of a database is punishable by a € 1,500 fine.
- Use of a Social Security number without the authorisation of the personal data subject is punishable by a fine of € 30,000 and 5 years’ imprisonment.
These sanctions may be increased in case the offences are repeated.
As to civil remedies, victims could also sue to obtain damages for breach of their privacy on the basis of Article 9 of the French Civil Code, should such privacy be effectively breached.
Any act which hinders the mission of the CNIL, such as preventing on the spot checks, refusing to provide agents of the CNIL with information and documents useful for their mission, concealing these documents, removing them or communicating false or unintelligible information is punishable by a 5-year prison term and a fine of € 15,000.
A breach of the Law could prompt an investigation by the CNIL which has the power to serve the company with notice to comply with French law or, in more serious cases, to lodge a complaint in court. According to the Data Protection Directive n° 95/46/CE on the protection of individuals with regards to the processing of personal data and on the free movement of such data, which came into effect on 25 October 1998 but which has not yet been implemented in France, the powers of the CNIL will be increased. The CNIL will thus have increased powers of investigation and sanctions would be strengthened.
Please note that a bill of January 31, 2002 has been drafted in order to fully implement the European Directive 95/46 EC of October 24, 1995.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.