Tag Archives: CNIL

CNIL publishes GDPR compliance toolkit

CNIL published this week a useful guide for all organisations thinking to start getting ready for GDPR compliance, but asking themselves “where to start?”. The French DPA created a dedicated page for the new “toolkit“, while detailing each of the six proposed steps towards compliance by also referring to available templates (such as a template for the Register of processing operations and a template for data breach notifications – both in FR).

According to the French DPA, “the new ‘accountability’ logic under the GDPR must be translated into a change of organisational culture and should put in motion internal and external competences”.

The six steps proposed are:

  1. Appointing a “pilot”/”orchestra conductor” [n. – metaphors used in the toolkit], famously known as “DPO”, even if the controller is not under the obligation to do so. Having a DPO will make things easier.
  2. Mapping all processing activities (the proposed step goes far beyond data mapping, as it refers to processing operations themselves, not only to the data being processed, it also refers to cataloging the purposes of the processing operations and identifying all sub-contractors relevant for the processing operations);
  3. Prioritising the compliance actions to be taken, using as starting point the Register and structuring the actions on the basis of the risks the processing operations pose to the rights and freedoms of individuals whose data are processed. Such actions could be, for instance, making sure that they process only the personal data necessary to achieve the purposes envisaged or revising/updating the Notice given to individuals whose data are processed (Articles 12, 13 and 14 of the Regulation);
  4. Managing the risks, which means conducting DPIAs for all processing operations envisaged that may potentially result in a high risk for the rights of individuals. CNIL mentions that the DPIA should be done before collecting personal data and before putting in place the processing operation and that it should contain a description of the processing operation and its purposes; an assessment of the necessity and the proportionality of the proposed processing operation; an estimation of the risks posed to the rights and freedoms of the data subjects and the measures proposed to address these risks in order to ensure compliance with the GDPR.
  5. Organising internal procedures that ensure continuous data protection compliance, taking into account all possible scenarios that could intervene in the lifecycle of a processing operation. The procedures could refer to handling complaints, ensuring data protection by design, preparing for possible data breaches and creating a training program for employees.
  6. Finally, and quite importantly, Documenting compliance. “The actions taken and documents drafted for each step should be reviewed and updated periodically in order to ensure continuous data protection”, according to the CNIL. The French DPA  provides a list with documents that should be part of the “GDPR compliance file”, such as the Register of processing operations and the contracts with processors.

While this guidance is certainly helpful, it should be taken into account that the only EU-wide official guidance is the one adopted by the Article 29 Working Party. For the moment, the Working Party published three Guidelines for the application of the GDPR – on the role of the DPO, on the right to data portability and on identifying the lead supervisory authority. The Group is expected to adopt during the next plenary guidance for Data Protection Impact Assessments.

If you are interested in other guidance issued by individual DPAs, here are some links:

NOTE: The guidance issued by CNIL was translated and summarised from French – do not use the translation as an official source. 

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The right to be forgotten goes back to the CJEU (with Google, CNIL, sensitive data, freedom of speech)

The Conseil d’Etat announced today that it referred several questions to the Court of Justice of the EU concerning the interpretation of the right to be forgotten, pursuant to Directive 95/46 and following the CJEU’s landmark decision in the Google v Spain case.

The questions were raised within proceedings involving the application of four individuals to the Conseil d’Etat to have decisions issued by the CNIL (French DPA) quashed. These decisions rejected their requests for injunctions against Google to have certain Google Search results delisted.

According to the press release of the Conseil d’Etat, “these requests were aimed at removing links relating to various pieces of information :a video that explicitly revealed the nature of the relationship that an applicant was deemed to have entertained with a person holding a public office; a press article relating to the suicide committed by a member of the Church of Scientology, mentioning that one of the applicants was the public relations manager of that Church; various articles relating to criminal proceedings concerning an applicant; and articles relating the conviction of another applicant for having sexually aggressed minors.

The Conseil d’Etat further explained that in order to rule on these claims, it has deemed necessary to answer a number of questions “raising serious issues with regard to the interpretation of European law in the light of the European Court of Justice’s judgment in its Google Spain case.

Such issues are in relation with the obligations applying to the operator of a search engine with regard to web pages that contain sensitive data, when collecting and processing such information is illegal or very narrowly framed by legislation, on the grounds of its content relating to sexual orientations, political, religious or philosophical opinions, criminal offences, convictions or safety measures. On that point, the cases brought before the Conseil d’Etat raise questions in close connection with the obligations that lie on the operator of a search engine, when such information is embedded in a press article or when the content that relates to it is false or incomplete”.

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CNIL just published the results of their GDPR public consultation: what’s in store for DPOs and data portability? (Part I)

Gabriela Zanfir Fortuna

The French Data Protection Authority, CNIL, made public this week the report of the public consultation it held between 16 and 19 July 2016 among professionals about the General Data Protection Regulation (GDPR). The public consultation gathered 540 replies from 225 contributors.

The main issues the CNIL focused on in the consultation were four:

  • the data protection officer;
  • the right to data portability;
  • the data protection impact assessments;
  • the certification mechanism.

These are also the four themes in the action plan of the Article 29 Working Party for 2016.

This post (Part I) will summarise the results and action plan for the first two themes, while the last two will be dealt with in a second post (Part II). [Disclaimer: all quotations are translated from French].

1) On the data protection officer

According to Article 37 GDPR, both the controller and the processor must designate a data protection officer where the processing is carried out by a public authority (1)(a), where their core activities consist of processing operations which require regular and systematic monitoring of data subjects on a large scale (1)(b) and where their core activities consist of processing sensitive data on a large scale (1)(c).

The report reveals that there are many more questions than answers or opinions about how Article 37 should be applied in practice. In fact, most of the contributions are questions from the contributors (see pages 2 to 4). They raise interesting points, such as:

  • What is considered to be a conflict of interest – who will not be able to be appointed?
  • Should the DPO be appointed before May 2018 (when GDPR becomes applicable)?
  • Will the CNIL validate the mandatory or the optional designation of a DPO?
  • Which will exactly be the role of the DPO in the initiative for and in the drafting of the data protection impact assessments?
  • Which are the internal consequences if the recommendations of the DPO are not respected?
  • Is it possible that the DPO becomes liable under Criminal law for how he/she monitors compliance with the GDPR?
  • Should the DPO be in charge of keeping the register of processing operations and Should the register be communicated to the public?
  • Should only the contact details of the DPO be published, or also his/her identity?
  • Must the obligations in the GDPR be applied also for the appointment of the DPO that is made voluntarily (outside the three scenarios in Article37(1))?
  • Can a DPO be, in fact, a team? Can a DPO be a legal person?
  • Are there any special conditions with regard to the DPO for small and medium enterprises?

The CNIL underlines that for this topic an important contribution was brought by large professional associations during discussions, in addition to the large number of replies received online.

In fact, according to the report, the CNIL acknowledges “the big expectations of professional associations  and federations to receive clarifications with regard to the function of the DPO, as they want to prepare as soon as possible and in a sustainable way for the new obligations” (p. 5).

As for future steps, the CNIL recalls that the Article 29 Working Party will publish Guidelines to help controllers in a practical manner, according to the 2016 action plan. (There’s not much left of 2016, so hopefully we’ll see the Guidelines soon!). The CNIL announces they will also launch some national communication campaigns and they will intensify the training sessions and workshops with the current CILs (Correspondants Informatique et Libertés – a role similar to that of a DPO).

2) On the right to data portability

new-note-2

Article 20 GDPR provides that the data subject has the right to receive a copy of their data in a structured, commonly used and machine-readable format and has the right to transmit those data to another controller only if the processing is based on consent or on a contract.

First, the CNIL notes that there was “a very strong participation of the private sector submitting opinions or queries regarding the right to data portability, being interesting especially about the field of application of the new right, the expenses its application will require and about its consequences on competition” (p. 6).

According to the report, the right to data portability it’s perceived as an instrument that allows regaining the trust of persons about processing of their personal data, bringing more transparency and more control over the processing operation (p. 6).

On another hand, the organisations that replied to the public consultation are concerned about the additional investments they will need to make to implement this right. They are also concerned about (p. 6):

  • “the risk of creating an imbalance in competition between European and American companies, as European companies are directly under the obligation to comply with this right, whereas American companies may try to circumvent the rules”. My comment here would be that they should not be concerned about that, because if they target the same European public to offer services, American companies will also be under a direct obligation to comply with this right.
  • “the immediate cost of implementing this right (for instance, the development of automatic means to extract data from databases), which cannot be charged to the individuals, but which will be a part of the management costs and will increase the costs for the services”.
  • “the level of responsibility if the data are mishandled or if the data handed over to the person are not up to date”.

The respondents to the public consultation seem to be a good resource for technical options to use in terms of the format needed to transfer data. Respondents argued in favor of open source formats, which will make reusing the data easier and which will be cheaper compared to proprietary solutions. Another suggested solution is the development of Application Program Interfaces (APIs) based on open standards, without a specific licence key. This way the persons will be able to use the tools of their choice.

One of the needs that emerged from the consultation was to clarify whether the data that are subject to the right to portability must be raw data, or whether transferring a “summary” of the data would suffice. Another question was whether the data could be asked for by a competing company, with a mandate from the data subject. There were also questions regarding the interplay of the right to data portability and the right of access, or asking how could data security be ensured for the transfer of the “ported” data.

In the concluding part, the CNIL acknowledges that two trends could already be seen within the replies: on the one hand, companies tend to want to limit as much as possible the applicability of the right to data portability, while on the other hand, the representatives of the civil society are looking to encourage persons to take their data in their own hands and to reinvent their use (p. 10).

According to the report, the Technology Subgroup of the Article 29 Working Party is currently drafting guidelines with regard to the right to data portability. “They will clarify the field of application of this right, taking into account all the questions raised by the participants to the consultation, and they will also details ways to reply to portability requests”, according to the report (p. 10).

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Click HERE for Part II of this post.

CNIL criticises proposed regulation for cutting too much of the national DPA's power

In the annual activity report it pubslihed in July, CNIL underlines that the proposed regulation on protection of personal data the European Commission published early in 2012 cuts too much of the national DPA’s power with regard to transnational processing.

HLdataprotection.com reviews the report and writes that the proposed new European regulation drew criticism in the CNIL’s report on three points. First, the CNIL expressed concern that making a single data protection authority responsible for the European-wide activities of an enterprise could result in a significant decrease in the level of protection of individuals. Citing the example of a social network whose main establishment is located in another European member state, the CNIL said it was inappropriate to reduce the role of the French data protection authority (“DPA”) to a simple mailbox to forward complaints to the principal DPA responsible for the social network’s activities. According to the CNIL, a French user who is harmed by the activities of an enterprise doing business in France should be able to look to the French regulator for redress.

The second point on which the CNIL diverges from the Commission is on the issue on international data transfers. The CNIL believes that transfers to countries that have not been recognised as providing adequate protection should be based on contractual clauses or BCRs that have been approved in advance by the CNIL. Under the proposed regulation, an international transfer based on standard contractual clauses will not require the prior approval of the DPA.

Finally, the CNIL made the point that the new accountability measures included in the draft regulation should not be viewed as a form of self-regulation, or as a trade-off for less regulatory supervision. Instead, the accountability measures should be viewed as a supplement to existing regulatory principles and enforcement practices.

You can find CNIL’s report here: http://www.cnil.fr/fileadmin/documents/La_CNIL/publications/RA2011_CNIL_FR.pdf

You can also find the rest of the HLdataprotection.com’s review HERE