One year of Data Protection Enforcement in France: what the CNIL’s Activity Report 2013 Reveals and what to expect in 2014

by Proskauer - Privacy & Data Security
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According to the French Data Protection Authority’s (“CNIL”) recently issued activity report for 2013 (http://www.cnil.fr/fileadmin/documents/La_CNIL/publications/CNIL_34e_Rapport_annuel_2013.pdf ), the CNIL was especially busy in 2013. The main topics addressed by the CNIL in 2013 were the creation of a national consumer credit database, the right to be forgotten, the right to refuse cookies, the proposed EU Regulation, and, of course, the revelations concerning the U.S. Prism program and the surveillance of European citizens’ personal data by foreign entities. The report also presents the main issues that the CNIL will tackle in 2014. Such issues include privacy in relation to open data, as well as in relation to new health monitoring apps or quantified self apps. The CNIL will also deal with “digital death” and more specifically, on how to deal with the social network profiles of deceased persons.

The CNIL’s report starts with what was the central issue in data protection throughout 2013, the U.S. Prism program and more generally any mass surveillance programs of European citizens by foreign entities. The CNIL created a working group on the related subject of long-arm foreign statutes which allow foreign administrations to obtain personal data from French and European citizens. Such statutes have various purposes (combating money laundering, corruption, the financing of terrorism, etc.) and lead to the creation of black lists. In addition, the CNIL addresses those subjects with the other Data Protection Agencies within the Article 29 Working Party.

Another important topic was the proposed creation in France of a centralized national register where all consumer credit lines opened by an individual would have been listed, in order to allow credit companies to verify an individual’s level of debt.  Indeed, consumer credit lines are fairly easily granted in France, and some consumers accumulate credit lines beyond their payment capacities and ultimately default in payment. The CNIL rendered negative advice on this register arguing that it breached the proportionality principle of the French law on data protection. Indeed, since only a small minority of people defaults, it considered that the collection and processing of data from all credit users was disproportionate. The register was nevertheless approved by the Parliament, but was immediately overruled by the French constitutional court in 2014, which, like the CNIL, considered that the register breached the right to privacy.

The CNIL also issued a recommendation in 2013 on how to obtain valid consent for cookies and any type of online tracking devices. The CNIL had initially interpreted consent for cookies (resulting from the e-privacy directive) as meaning explicit “opt-in” consent. But the CNIL finally backtracked and issued its 2013 recommendation allowing for opt-out consent, provided that website users are duly informed. In practice, the CNIL recommends the use of a banner on the website, stating that the site uses cookies and listing the purposes of the cookie. The user may click on the banner to refuse some or all cookies. But the banner provides that if the user continues to surf the website, he/she is deemed to have accepted the cookies (which is a form of opt-out consent). Some cookies, including those necessary for the functioning of the website or for security, do not require consent.

With regards to of the CNIL’s auditing and sanctions in 2013, the CNIL’s priorities remained committed to training, promoting awareness on data protection and issuing guidance for companies. Imposing financial penalties remains an exception. Statistics of the CNIL’s auditing and sanctions activities in 2013 demonstrate this quite clearly:

5640 complaints: Complaints to the CNIL were stable in 2013. The CNIL attributes this stability to its new guidance available on its website. This guidance deals with common issues such as video surveillance and direct marketing, and helps companies to comply, thus stabilizing the number of complaints to the CNIL.

414 audits: 75% of the CNIL’s audits in 2013 were of private companies, and 25% were of public administration. Many audits occurred after a complaint was filed with the CNIL (33% of the audits), but audits were also conducted at the initiative of the CNIL (27%) or following a previous sanction to make sure that the companies were now compliant (16%). Finally, 24% of the audits were devoted to sectors chosen by the CNIL: in 2013, companies dealing with open data as well as surveys were audited, and the social services administration was also audited.

14 decisions with sanctions: This includes 7 warnings and only 7 financial penalties.

For 2014, the CNIL has identified four major topics: open data, health data, and “digital death”. On open data, the CNIL will audit the current legal framework and will propose improvements. The CNIL itself wishes to open its data (rendered anonymous) to the public. With regards to health data, the CNIL will investigate the impact on privacy from apps and other tools (“quantified self”) that allow individuals to monitor their health and physical activity. The CNIL will address “digital death”, in particular how to deal with data of a deceased person. Finally, the CNIL will conduct audits in the penitentiary administration in order to verify whether the rights of prisoners to privacy are respected.

DISCLAIMER: 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.

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