France: French Employers Who Provide Staff with Internet Access Are Held to the Same Data Retention Obligations as ISPs

The 1997 Telecommunications Privacy Directive1 provided that EU Member States2 had the possibility, but not the obligation, to require telecom operators to retain communication data arising out of the use of the telecommunications system for law enforcement purposes. That Directive was replaced by the 2002 Electronic Communications Directive3 in order to adapt the EU legal regime to technical developments such as the growth of the Internet. The new Directive extended the scope of the 1997 Directive by explicitly allowing EU countries to compel telecom and Internet service providers (ISPs) to record and store traffic data under certain circumstances. National laws must, however, (a) ensure that the data are only retained for a limited period of time; (b) aim to achieve specific, enumerated "public order" purposes; (c) be necessary, appropriate, and proportionate within a democratic society for achieving these purposes; and (d) be consistent with the European Convention on Human Rights. The Directive fails to regulate the time period for which the data must be retained.

Since then, a battle has emerged between, on one side, Member State law enforcement and intelligence agencies, who are pushing for the retention of all communication data, and, on the other side, privacy advocates and ISPs, who strongly resist these demands. At the International Data Protection Conference in Cardiff in September 2002, data protection and privacy commissioners expressed "grave doubts as to the legitimacy and legality of such broad measures."4 Also, the Article 29 Working Group, which is an advisory body made up of the national data protection authorities of the 25 EU Member States, has issued highly critical position papers, arguing that broad data retention schemes conflict with one of the core principles of EU data protection law, the proportionality principle under which the amount of data collected is limited to what is necessary to achieve the purpose(s) for which the data are gathered. Data must also be erased when no longer needed for the specific purposes for which they were collected. However, questions relating to the breadth of the regime and the concerns about the invasion of personal privacy, the sheer magnitude of the volume of data, and the considerable costs involved remain largely unresolved.

A legal issue that employers throughout Europe have been facing is whether they would also become subject to the same obligations when they make internet access available to their employees. This is the question that was squarely presented to the Paris Court of Appeal (Cour d’Appel de Paris, "Court") in BNP Paribas v World Press Online.5 The judgment was delivered on February 4, 2005.

Facts

World Press Online ("WPO") is a U.S.-based online press and photo agency. In 2004, two of WPO’s business partners received anonymous e-mails alleging that WPO was on the brink of bankruptcy. These e-mails appeared to have been sent in 2003 from a Yahoo! e-mail account which was accessed from a France-based computer located in the offices of BNP Paribas ("BNP"), one of the leading French banks.

Alleging that these two business partners had subsequently severed business links with the company as a result of receiving these e-mails, WPO requested assistance from BNP in order to determine the identity of their author. Faced with BNP’s refusal to cooperate, WPO sought a court order compelling BNP to provide the name of the author of the allegedly illegal and malevolent e-mails on the basis of the relevant communication data. The order was eventually granted by the Paris Commercial Court (Tribunal de Commerce de Paris) in October 2004.

On appeal, BNP argued that obligations to protect employee privacy prevented it from retaining the communication and turning over the information. The bank also argued that data retention obligations were devised as part of the legal framework for ISPs, not to create new, costly data retention obligations for all employers providing internet access to their employees.

Key Holding

The Court held that while there was no legal obligation on BNP to actually identify the author of the allegedly illegal e-mails, BNP was under an obligation to retain and hand over all relevant traffic data. (As a practical matter, it is conceivable that the traffic data may make it possible to identify the individual employee authoring the e-mails. Then again, depending on its internal configuration, identifying the author may require BNP’s cooperation.)

Ruling on the traffic data issue, the Court referred to the 1986 "Liberty of Communications Act (Loi relative à la liberté de communication)6 as amended in 2000 ("Communications Act"), to provide for the mandatory retention of certain types of internet data. The Court found that the Communications Act makes no distinction between ISPs who offer internet access on a commercial basis, and employers who give internet access to staff.

Comment

Sadly, the Court’s judgment does not contain any legal reasoning leading to this interpretation. Nor does it consider BNP’s argument that on a proper reading of the Communications Act, employers should not be held to the same standard as ISPs in terms of data retention. It is unfortunate that the Court did not explore the preparatory works of the 2000 amendment to the Communications Act, which lend strong support to BNP’s legal reasoning. Draft versions of the 2000 amendment to the Communications Act as well as the Assemblée Nationale and Senate reports state that data retention obligations apply to ISPs and web hosting providers. Furthermore, it is clear from the legislative history of the 2000 amendment that the data retention provisions were aimed at counterbalancing another provision in the same amendment according to which ISPs are largely shielded from liability for content (e.g., pictures, news stories, websites, etc). Since ISPs are largely protected from lawsuits related to "content," it was considered fair to require them to provide traffic data in order to identify "content" providers, so that aggrieved parties can effectively bring lawsuits against the original "content" providers. Clearly, it was never the intention of the French legislature to include all employers generally within the scope of the data retention obligation.

In view of this judgment and upcoming legal developments, it seems that the issue of mandatory retention schemes for communication data (and the corresponding requirement to invest in equipment and technological expertise) is becoming both confusing and unavoidable, at least in France where data retention obligations on ISPs and, possibly, employers are governed by a patchwork of overlapping legal provisions. The Communications Act, the "Law on Everyday Security" (Loi sur la Sécurité Quotidienne) of 20017 and the "Law on Confidence in the Digital Economy" (Loi pour la Confiance dans l’Economie Numérique) of 20048all contain provisions on traffic data retention. Both the Communications Act and the "Law on Confidence in the Digital Economy" provide for a general obligation to retain traffic data. Both laws provide that the details should be worked out in implementing decrees, which have not yet been adopted. Under the "Law on Everyday Security," the position is that there is a derogation "for the purpose of" law enforcement from the general obligation under the proportionality principle to limit the amount of data collected and retained to what is strictly necessary to achieve the purpose(s) for which the data are gathered. Again, no further details are provided. Yet another implementing decree is due to be adopted on the basis of the "Law on Everyday Security." For the moment, ISPs and, according to the Court, employers are left in legal limbo.

One reason that might explain the delay in adopting implementation legislation in France is that there are developments at the EU level. In April 2004, a number of Member States, including France, Ireland, Sweden, and the United Kingdom, tabled a draft decision9 on the retention of telecom/internet traffic data for the purpose of criminal law enforcement (including counter-terrorism). They cited the March 2004 bombings in Madrid as illustrating the necessity to better control such data. Although this draft decision has met with considerable criticism within the Article 29 Working Group10 and in the French Senate, ISPs and employers can expect extensive regulation and onerous obligations resulting from these movements, as they are consistent with a broader trend towards tighter legal control over the internet. From this point of view, it could be argued that the BNP v WPO judgment merely gives them a taste of what lies in store for them.

Footnotes:

1. Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector, Official Journal L 24/1 of 30 January 1998.

2. The 25 Member States of the European Union currently are: Austria, Belgium, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, the Netherlands, and the United Kingdom.

3. Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), Official Journal L 201 of 31 July 2002, page 37.

4. See http://www.fipr.org/press/020911DataCommissioners.html.

5. See http://www.foruminternet.org/telechargement/documents/ca-par20050204.pdf

6. See www.assemblee-nationale.fr/ta/ta0553.asp. The 2000 amendment amends articles 43-7 to 43-9 of the 1986 Communications Law.

7. See http://www.legifrance.gouv.fr/WAspad/UnTexteDeJorf?numjo=INTX0100032L.

8. See http://www.legifrance.gouv.fr/WAspad/UnTexteDeJorf?numjo=ECOX0200175L.

9. Council document 8958/04, presented on 28 April 2004 (plus addendum of 20 December 2004), at http://register.consilium.eu.int/pdf/en/04/st08/st08958.en04.pdf and http://register.consilium.eu.int/pdf/en/04/st08/st08958-ad01.en04.pdf. The European Commission subsequently issued a consultation document on this topic. See http://europa.eu.int/information_society/topics/ecomm/doc/useful_information/library/public_consult/data_retention/consultation_data_retention_30_7_04.pdf.

10. See Opinion 9/2004 adopted on November 9, 2004 at http://europa.eu.int/comm/internal_market/privacy/docs/wpdocs/2004/wp99_en.pdf.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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