In a decision dated 27 February 2020, the French Administrative Court of Marseille invalidated the deliberation of the Provence-Alpes-Côte d’Azur Regional Council which allowed to set up, on an experimental basis, a facial recognition mechanism in two high schools in order to (i) better control and speed up entry of students into the high schools and (ii) control access to premises of occasional visitors. This decision is important as this is the first administrative court decision in France about facial recognition.
The French Data Protection Authority has recently released new guidelines (French only) regarding human resources processing operations. When the GDPR became effective, the CNIL’s previous set of HR Data guidelines became out of date as they did not incorporate new law’s requirements (e.g. obligations relating to records of processing activities and Data Protection Impact Assessments). These new guidelines replace several older HR guidelines issued by the CNIL, including and in particular the well-known Simplified Norm NS-46 and the Notification Exemption for payroll, both of which are no longer applicable.
The French Data Protection Authority published new Guidelines on December 10, 2019 applicable to whistleblowing schemes, following a public consultation process. The Guidelines replace the former Single Authorization AU-004, which has not applied since arrival of the General Data Protection Regulation. The CNIL has also published a useful Frequently Asked Questions webpage regarding the Guidelines. The CNIL’s new Guidelines import certain aspects of its former position on whistleblowing schemes.
On 19 July the French Data Protection Authority published new guidelines on cookies and trackers. These replace the existing Recommendation No. 2013-378 of 5 December 2013, are intended to be in line with relevant GDPR provisions and have been produced in anticipation of the future ePrivacy Regulation. The guidelines will be supplemented, at a later stage, with sectoral recommendations setting out practical methods for obtaining consent. These sectoral recommendations will be included in a final version of the guidelines on cookies and trackers open for public consultation, which will then be subject to final adoption by the CNIL (expected early 2020).
The French Data Protection Authority has made targeted online advertising a priority topic in its 2019-2020 agenda and has changed its position on cookie consent. Although the ePrivacy Regulation is still being debated by EU legislators and is far from being finalised, the CNIL has withdrawn its 2013 cookie recommendation and announced that it will publish new guidelines (announcements are available in English on the CNIL’s website here and here). These explicitly rule out the use of implied or “soft” consent to place cookies on users’ devices.
Following the one-year anniversary of the coming into effect of the GDPR, Hogan Lovells’ Privacy and Cybersecurity practice has prepared summaries of key GDPR-related developments of the past 12 months. The summaries cover regulatory guidance, enforcement actions, court proceedings, and various reports and materials.
The French Data Protection Authority (the CNIL) published its assessment of the first four months of GDPR and several guidelines, including one on how to make a GDPR compliant blockchain. Since the Data Protection Act’s implementation, the CNIL has been very active in guiding French citizens on how to comply with the new legal framework and warning them about threats from new technologies.
On July 25, 2016, Hogan Lovells hosted a Silicon Valley dinner as part of its 2025 dinner series. The theme of the dinner was “I’m from Mars, You’re from Venus: The Tech Community and its Future Relationship with Government”. The discussion, moderated by Deirdre Mulligan of UC, Berkeley, focused on the tech community’s view of regulatory, law enforcement and national security issues, here in the U.S., as well as in Europe; and how the tech industry will be impacted by the upcoming U.S. elections as well as Brexit.
In an April 15, 2016 report, the French Data Protection Authority, the CNIL, provided details about its little-known responsibility as overseer of the French police’s website-blocking powers. The French legislature gave the CNIL this new role in a November 13, 2014 law designed to enhance French police powers against terrorism. The 2014 law increased French police and intelligence agencies’ powers to collect data without a court order. A lesser-known aspect of the November 2014 law is the provision that allows the French police to order ISPs to block websites that either provoke terrorist acts or support (provide an “apologia” or defense for) terrorism. When the French police identify online content that violates these rules, they may order ISPs to block access. The police also have this power with regard to child pornography. Search engines can also be ordered to delist content from search results.
A bill, passed by the French National Assembly on 26th January 2016, and now before the French Senate, would amend Article 47 of the French Data Protection Act to give the French Data Protection Authority (the CNIL) the power to impose penalties for breaches of data protection law of up to 20 million euros or up to 4% of an organization’s total worldwide annual turnover (the Digital Republic Bill). Up until now, the CNIL could only issue penalties of up to 150 000 euros.
Speaking at a recent conference organized jointly by AmCham and EY on “the Internet of Things, Opportunities and Challenges for the Protection of Personal Data”, Sophie Nerbonne, Head of Compliance at the French data protection authority explained how the CNIL views the opportunities and risks raised by connected devices, focusing particularly on smart meters as a scheme that may apply to other devices.
On June 30, 2015, the French data protection authority, the CNIL, announced that it gave notice to 20 websites to comply with the consent requirements applicable to cookies. After patiently waiting for almost a year to give websites the opportunity to comply with the cookie notice and consent rules explained in its official guidance from December 2013, the CNIL launched a series of audits (27 online audits, 24 on-site audits and 2 hearings) in October 2014.
Accountability has been described by the Article 29 Working Party as a way of “showing how responsibility is exercised and making this verifiable”. Accountability is far from being a new concept. It was introduced back in 1980 in the OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data. This entry is an excerpt from Hogan Lovells’ “Future-proofing privacy: A guide to preparing for the EU Data Protection Regulation.”
On 16 April 2015, the French data protection authority, the CNIL, published its annual report for 2014. The CNIL’s annual report is an opportunity for the authority to report on its activities over the previous year as well as set out its priorities for the coming year. Significantly, a number of new technologies such as connected cars and smart cities were included in the list of priorities that the CNIL will tackle in coming months.
On 24 March, the French data protection authority, the CNIL, announced that it will soon make easier the practical implementation of intra-group transfers of data from French entities to entities located outside the European Union where groups of companies have adopted Binding Corporate Rules (BCRs). BCRs are becoming increasingly popular among multinationals as a legal means for providing adequate protection to personal data which are transferred from the European Union to countries that are not considered to provide an adequate level of protection by the European Commission. In the CNIL’s view, the implementation of BCRs shows a strong commitment from multinational organisations to protect personal data. Indeed, the CNIL has been a champion of the emerging “BCR for processors” initiative which is also prompting interest from sophisticated processors who operate globally.
Security concerns and the need to increase cyber security measures have recently boosted the use of Bring Your Own Device policies in France. Recent events have exacerbated fears of data breaches and hacking for IT managers who were not overly concerned before. As a consequence, IT security teams are seeking to apply the same security and device management systems that apply to their own company’s equipment to employees’ devices when employees use their devices for work purposes. The expansion of an employer’s control over its employees’ devices raises concerns for the privacy and protection of employees’ personal data. The CNIL has published new guidelines on BYOD. An unofficial English translation of the guidelines appear in this post.
The chairwoman of the French data protection authority (the CNIL), Isabelle Falque-Pierrotin, has long been an outspoken proponent that companies should have internal accountability mechanisms for data protection compliance. On January 13, 2015 the CNIL published a standard defining what accountability means in practice. Companies that demonstrate that they comply with the new standard will be able to obtain an “accountability seal” from the CNIL.
Following on the heels of the IAPP Congress in Brussels, the CNIL’s (the French data protection authority) international chief, Florence Raynal, engaged in a dialogue with the members of the American Chamber of Commerce’s Digital Economy Committee in France. Raynal engaged with AmCham members on questions relating to the EU-US Safe Harbor framework, focusing on the practicalities of onward transfers. The discussion involved two kinds of transfers.
On November 12, 2014, the CNIL issued a new compliance pack for the insurance sector drafted in collaboration with the sector trade associations. Compliance packs are a new tool that the CNIL has been promoting for the past few months as an operational response to the needs of professionals concerning the application of the French data protection law. The CNIL has previously published compliance packs about electric “smart meters” and about social housing. Two new compliance packs are already announced to be published soon: one about banking activities and one about social services.
Addressing the French Parliamentary Commission on Digital Rights, CNIL and Article 29 Working Party Chair Isabelle Falque-Pierrotin commented on the current state of negotiations of the proposed European General Data Protection Regulation, warning that excessive reliance on a risk-based approach could undermine fundamental rights. A risk analysis is useful as a guide to allocate resources, but should not affect the underlying rights of the data subject, she said. To illustrate her point, Falque-Pierrotin used the analogy of a home owner who lives in a part of the city where burglaries are frequent. The risk-based approach means that the home owner will buy more locks for doors, and that police authorities may devote more resources to patrolling. It does not mean, however, that home owners have different rights depending on where they live. Falque-Pierrotin is concerned that the current negotiations on the risk-based approach may confuse these two concepts, leading to a situation where individuals’ rights are reduced or ignored for low-risk processing.
The French data protection authority has announced that following the “cookie sweep day” due to take place the week commencing 15 September 2014, it will launch a program of website audits in October to verify compliance with the CNIL’s 5 December 2013 cookie recommendations.
Three weeks after the FTC’s seminar on Consumer Generated and Controlled Health Data, the French data protection authority, the CNIL, held its own workshop on connected health and wellness devices. This blog post summarizes the results of the CNIL workshop.
The CNIL, France’s data protection authority, published on 25 February 2014 a new recommendation relating to the collection of credit card information, replacing an older 2003 recommendation. The new recommendation, which represents a de facto standard for online merchants and payment services providers who collect data from French consumers, is more prescriptive than the old, particularly regarding how online merchants should seek consent for the retention of credit card information.