The purpose of the legislation regarding data processing is to protect individuals against the abusive use of computerized data concerning them. Specifically, the regulated data is defined in Article 4 of the Law as (translation) "data which permit, in any form, directly or indirectly, the identification of the natural persons to which they relate, irrespective of whether the processing is done by a natural or legal person."
The Law created the Commission Nationale de l'Informatique et des Libert's (the "CNIL"), which has regulatory and supervisory powers with respect to the electronic processing of information concerning identified individuals.
1. PRIOR DECLARATION TO THE CNIL
The Law (Article 16) imposes an obligation on companies wishing to create data processing systems or compile data banks which will contain or process personal information regarding individuals to file a prior declaration with the CNIL. Any failure to comply with this obligation is a penal offense, and can result in the imposition of fines of up to FRF 300,000 per violation and, in extreme cases, prison terms of up to three years for the corporate officers deemed responsible for the violation of the Law.
The Law provides for two types of declarations: "Ordinary Declarations" and "Simplified Declarations." The latter type of declaration may be used only if the envisaged data processing system falls within one of the categories for which the CNIL has established "simplified standards" (for example, for standard form personnel files maintained by the human resources department of a company).
Ordinary declarations, which constitute the bulk of the declarations filed with the CNIL, consist of two parts:
a) the declaration, properly speaking, in the form and containing the information mandated by the CNIL and
b) exhibits detailing certain information set forth in the declaration.
The precise contents of the declaration are mandated by Article 19 of the Law, which requires that each declaration list or describe, as the case may be:
- the names of both the person filing the declaration and the person having authority to make decisions with respect to the contemplated data processing activities (or, if they reside abroad, the names of their local representatives);
- the characteristics, purpose, and, if applicable, the name of the data processing system;
- the department or departments responsible for the implementation of the data processing services;
- the department responsible for responding for requests by individuals for disclosure of the information recorded in the system with respect to them and a description of the procedure to be followed when responding to such requests;
- the categories of individuals who, due to their duties or positions in the department, have direct access to the recorded data;
- the nature of the personal data that will be processed processed, the source of such data and the period of time that the data will be kept, as well as the recipients or categories of recipients authorized to receive the data;
- the comparisons, interconnections or other means of regrouping such data, as well as third-party access to the data;
- the measures taken to ensure the security of the data processing operations, of the data and of confidential information protected by the law; and
- whether the data processing will result in the transmission of personal information between France and foreign countries, in any form whatsoever, including cases where data processing operations in France are based on operations previously carried out outside of France.
When a declaration containing all the information required by the Law is submitted to the CNIL, the CNIL in principle issues an acknowledgment of receipt to the filer, who may then immediately put the envisaged data processing system into operation (Article 16 of the Law and Article 22 of the Decree). If, however, the CNIL in its sole discretion determines that the declaration is incomplete, it may request additional information before issuing the its acknowledgment of receipt, thereby delaying indefinitely the implementation of the system.
Furthermore, even if an acknowledgment of receipt is issued, this does not mean that the CNIL has approved the data processing system as being in compliance with the Law. Indeed, under Article 16 of the Law, the filer remains at all times responsible for ensuring that the data processing system respects the provisions of the Law and of the Decree regarding, for example, the nature of the data that may be processed or stored and the cross-border transmission of data.
2. LIMITATIONS ON THE NATURE OF DATA STORED IN DATA BANKS
Articles 30 and 31 of the Law regulate the content of the personal data which may be processed by electronic means.
Article 30 forbids privately-held companies (except, under certain conditions, those performing a public service) to process personal data concerning (translation) "violations, convictions or other sanctions."
Article 31 forbids the (translation) "placing or storing in computerized memory, except with the explicit permission of the interested party, of personal data which, directly or indirectly, would denote racial origins, political opinions, religions or philosophical beliefs, and/or membership in trade unions."
3. TRANSMITTAL OF COMPUTERIZED DATA ACROSS NATIONAL BORDERS
Article 24 of the Law authorizes the French supreme court for administrative matters, the Conseil d'Etat, to issue decrees requiring that the electronic transmission of data across national borders be authorized in certain cases in advance. No such decrees have been issued to date and there is thus currently no restriction, other than the obligation to file the prior declaration described above, on the cross-border flow of data.
Moreover, the risk that such restrictions could be imposed in the future is severely limited in the case of transmissions that remain within the EC. Indeed, as regards transmissions within the EC, Article 12.2 of the Convention provides that "a Party [i.e., a Contracting State of the European Community shall not, for the sole purpose of the protection of privacy, prohibit or subject to special authorization transborder flows of personal data going to the territory of another Party." Under Article 12.3 of the Convention, the transmittal of data to a person located in another Contracting State may not be restricted if the other countrys legislation provides protection equivalent to that afforded in the originating country for personal data.
4. RESTRICTIONS ON THE COMMUNICATION OF COMPUTERIZED INFORMATION TO THIRD PARTIES
Article 29 of the Law provides that individuals or companies implementing data processing systems must undertake "vis-...-vis the persons concerned, to take all necessary precautions in order to maintain the security of the data and, in particular, to prevent these from being distorted, damaged or disclosed to unauthorized third parties.
Third parties, for the purposes of Article 29, should be interpreted as any persons other than those listed on the prior declaration made to the CNIL as having, due to their duties or positions, direct access to recorded data and the persons who are listed in the declaration as the intended recipients of the data. In other words, only the individuals so listed may have access to the data. Disclosure of the data to others is penal offense, which under Article 42 of the Law is punishable by imprisonment of the responsible corporate officers for from one to five years and/or by the imposition of fines of from FRF 20,000 to FRF 2,000,000 per violation.
5. PRECAUTIONS AGAINST UNAUTHORIZED USE AND DISCLOSURE
Article 29 of the Law makes it obligatory to take all necessary precautions to maintain the security of information stored in the data files. The obligations pertaining to the security of recorded data are generally deemed to be fulfilled if:
(i) the data processing equipment is physically protected, as would be the case where it is placed in a locked room;
(ii) electronic access to the data is restricted by confidential codes which are changed frequently; and/or
(iii) an individual is appointed as the person responsible for the use of the data-processing system and for the use of data stored therein.
Violations of this obligation are punishable by the sanctions, described above, contemplated by Article 42 of the Law.
6. OTHER CONSIDERATIONS
Other considerations which should be taken into account prior to the creation of a data bank or data processing system including personal data is (a) the time period during which computerized personal data may be kept, (b) the exercise by individuals of their right of access to the recorded personal data and (c) the exercise by the CNIL of its supervisory role.
(a) Time limitations on the storage of computerized data
Under Article 28 of the Law, the prior declaration filed with the CNIL must mention the period during which recorded data is to be stored and the data may not be kept beyond that period without the explicit approval of the CNIL. While the CNIL is generally flexible on the question of the period for which information will be held, it imposes strict time limits on certain types of data (for example, information concerning the reasons for an employees absences may not be stored for more than two years).
Violations of Article 28, like violations of the rules regarding third party access to the data and unauthorized use and disclosure, may give rise to the imposition of a prison term of between one and five years and/or fines of from FRF 20,000 to FRF 2,000,000 per violation.
(b) Right of access and of rectification
Individuals right of access to personal data concerning them that is to be processed or stored electronically is governed by Articles 34 to 40 of the Law. Under these provisions, individuals are entitled to obtain, in clear language, communication of the information pertaining to them and, if it is erroneous, incomplete, ambiguous, outdated or of a prohibited nature (e.g., religious affiliations), to require the correction of the data.
The CNIL has issued a recommendation regarding the exercise of the right of access and of rectification (CNIL Deliberation No. 80/10 of April 1, 1980). Compliance with this recommendation is not mandatory, but in the event of a dispute (for example, concerning the accuracy of information), it is routinely applied by the CNIL.
Under Article 1 of the Decree of December 23, 1981, actions taken to obstruct access or impede the right of correction are subject to fines. However, under Article 35 of the Law, the CNIL may, on request by the person in charge of a data processing system, grant time to respond to a request for information and/or to authorize the holder of the data not to respond to requests that, due to their number and/or systematic and repetitive nature, are clearly abusive.
(c) The CNIL's supervisory authority
Pursuant to Article 21 of the Law, the CNIL is empowered to receive and investigate any complaints concerning data processing systems and the nature of the data processed or stored in such systems. The CNIL may issue warnings to operators of data processing systems and enjoin them to bring their systems into compliance with the Law. In the event non-compliance persists, the CNIL may inform the public prosecutor of the non-compliance and criminal proceedings may by instituted.
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.
Kristine Karsten, ARCHIBALD ANDERSEN Association d'Avocats, Partner S.G. Archibald, Tour Gan - Cedex 13 - 92082 Paris La D‚fense 2 - France - Tel.: (33 1) 55 61 10 10 - Fax.: (33 1) 55 61 15 15