Data Protected - France

Last updated June 2022

General | Data Protection Laws

National Legislation
National Supervisory Authority
Scope of Application
Personal Data
Sensitive Personal Data
Data Protection Officers
Accountability and Privacy Impact Assessments
Rights of Data Subjects
Security
Transfer of Personal Data to Third Countries
Enforcement

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National Legislation
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General | Data Protection Laws

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National Legislation

General data protection laws

The General Data Protection Regulation (EU) (2016/679) (“GDPR”).

Law n° 2018-493 of 20 June 2018 “relating to personal data protection” incorporates the GDPR provisions in existing French Law n° 78-17 of 6 January 1978.

For greater clarity, the law has been rewritten via Ordinance n° 2018-1125 of 12 December 2018, which took effect on 1 June 2019 (altogether the “revised French DPA”).

Entry into force

The GDPR has applied since 25 May 2018.

The revised French DPA has retrospective effect and applies from 25 May 2018.

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National Supervisory Authority

Details of the competent national supervisory authority

The CNIL acts as the supervisory authority in France.

Commission Nationale de l’Informatique et des Libertés (the “CNIL”)

3 Place de Fontenoy

TSA 80715

75334 Paris

Cedex 07
France

 

Tel: 00 33 1 53 73 22 22 

 

www.cnil.fr

The CNIL will represent France on the European Data Protection Board.

Notification or registration scheme and timing

There is no obligation to notify regulators of any processing under the GDPR. However, controllers and processors must keep a record of their processing and make it available to their supervisory authority on request (subject to limited exemptions)

The revised French DPA requires certain types of processing relating to health data to be notified to the CNIL (see below).

Exemptions to notification

Not applicable.

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Scope of Application

What is the territorial scope of application?

The GDPR applies to the processing of personal data in the context of the establishment of a controller or processor in the EU.

It also contains express extra-territorial provisions and will apply to controllers or processors based outside the EU that: (i) offer goods or services to individuals in the EU; or (ii) monitor individuals within the EU. Controllers and processors caught by these provisions will need to appoint a representative in the EU, subject to certain limited exemptions.

The European Data Protection Board has issued Guidelines on the territorial scope of the GDPR (3/2018).

Without prejudice of the above, the revised French DPA applies to processing of personal data carried out in the context of the activities of an establishment of a controller or a processor on French territory, whether or not the processing takes place in France.

In addition, where the GDPR permits national variations, those variations will apply where the data subject resides in France regardless of whether or not the controller is established in France.

Is there a concept of a controller and processor?

Yes. The GDPR contains the concept of a controller, who determines the purpose and means of processing, and a processor, who just processes personal data on behalf of the controller.

The European Data Protection Board has issued Guidelines on the concepts of controller and processor in the GDPR (7/2020).

Both controllers and processors are subject to the rules in the GDPR, but the obligations placed on processors are more limited.

Are both manual and electronic records subject to data protection legislation?

Yes. The GDPR applies to both electronic records and structured hard copy records.

Are there any national derogations?

The GDPR does not apply to law enforcement activities which are instead subject to the Law Enforcement Directive. The GDPR also does not apply to areas of law that are outside the scope of Union law, such as national security, and does not apply to purely personal or household activity.

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Personal Data

What is personal data?

Personal data is information relating to an identified or identifiable natural person.

This is a broad term and includes a wide range of information. The GDPR expressly states it includes online identifiers such as cookies.

Is information about legal entities personal data?

No. However, information about sole traders and partnerships is likely to be personal data.

What are the rules for processing personal data?

All processing of personal data must comply with all six general data quality principles. Personal data must be: (i) processed fairly, lawfully and transparently; (ii) collected for specific, explicit and legitimate purposes and not processed in a manner incompatible with those purposes; (iii) adequate, relevant and not excessive; (iv) accurate and, where necessary, up to date; (v) kept in an identifiable form for no longer than necessary; and (vi) kept secure.

The processing of personal data must also satisfy at least one condition for processing personal data. These conditions are that the processing is: (a) carried out with the data subject’s consent; (b) necessary for the performance of a contract with the data subject; (c) necessary for compliance with a legal obligation; (d) necessary in order to protect the vital interests of the data subject; (e) necessary for the public interest or in the exercise of official authority; or (f) necessary for the controller’s or a third party's legitimate interests, except where overridden by the interests or fundamental rights and freedoms of the data subject.

These rules are almost identical to the core requirements for processing personal data in the old Data Protection Directive. The European Data Protection Board has issued Guidelines on the performance of a contract processing condition for online services (2/2019).

Are there any formalities to obtain consent to process personal data?

The requirements for consent under the GDPR are strict. 

To be valid, consent must be in clear and plain language and, where sought in writing, separate from other matters. Consent must be based on affirmative action so pre-ticked boxes are not acceptable. Consent might not be valid if: (i) there is any detriment to the data subject for refusing; (ii) there is an imbalance of power; (iii) consent for multiple purposes is bundled together; or (iv) the consent is a condition of entering into a contract. Finally, consent can be withdrawn at any time.

In practice, other processing conditions should be relied on where possible. Consent will only be an appropriate processing condition if the individual has a genuine choice over the matter, for example, whether to be sent marketing materials. 

The European Data Protection Board has issued Guidelines on consent (5/2020).

Are there any special rules when processing personal data about children?

Consent from a child in relation to online services will only be valid if authorised by a parent. A child is someone under 16 years old, though Member States may reduce this age to 13.

France has chosen to reduce this age limit to 15. The CNIL has also published a series of eight recommendations on the digital rights of children.

Are there any special rules when processing personal data about employees?

The GDPR allows Member States to implement more specific national rules governing the processing of personal data about employees. It may also be possible to process special category personal data where it is necessary for a legal obligation in the field of employment law. 

The revised French DPA allows employers' or administrations' processing of biometric data where strictly necessary to control access to the workplace or to computing resources. The CNIL has published recommendations in relation to the processing of personal data of employees and/or in the workplace. 

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Sensitive Personal Data

What is sensitive personal data?

Special category data is personal data consisting of racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, data concerning health or data concerning a natural person’s sex life or sexual orientation. The decision in OT (C-184/20) might suggest this should be interpreted broadly to include publication of information that indirectly discloses these characteristics. 

The inclusion of genetic and biometric data is new and an extension to the types of sensitive personal data in the Data Protection Directive.

Information about criminal offences is dealt with separately and is subject to even tighter controls.

Are there additional rules for processing sensitive personal data?

Special category data may only be processed if a condition for processing special category data is satisfied. A condition arises where the processing: (a) is carried out with the data subject’s explicit consent; (b) is necessary for a legal obligation in the fields of employment, social security and social protection law; (c) is necessary to protect the vital interests of the data subject or another person where the data subject is unable to give consent; (d) is carried out by a non-profit-seeking body and relates to members of that body or persons who have regular contact; (e) relates to data made public by the data subject; (f) is necessary for legal claims; (g) is for reasons of substantial public interest under EU or Member State law; (h) is necessary for healthcare reasons; (i) is necessary for public health reasons; or (j) is necessary for archiving, scientific or historical research purposes or statistical purposes and is based on EU or Member State law.

It is still necessary to consult with, and/or get authorisation from, the CNIL for some processing of heath data such as: (i) processing of sensitive data conducted for public interest reasons; or (ii) automated processing for research in the field of health. The CNIL has issued guidance which is available here.

The revised French DPA also contains additional provisions regarding processing of special category personal data. For instance, it allows: (i) employers' or administrations' processing of biometric data where strictly necessary to control access to the workplace or the use of apparatus or software applications; and (ii) processing of special category personal data where that data will be promptly anonymised in accordance with a method validated by the CNIL.

Other provisions relate to the reuse of public information contained in judgments and decisions and, under some circumstances, processing necessary for public research.

Finally, the revised French DPA imposes controls on the processing of national registration numbers. These can only be used for permitted purposes, such as the management and monitoring of health alerts. Decree n° 2019-341 of 19 April 2019 provides an exhaustive list of permitted purposes, described here.

Are there additional rules for processing information about criminal offences?

It is only possible to process personal data relating to criminal convictions or offences if: (a) it is carried out under the control of official authority; or (b) when the processing is authorised by EU or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects.

The revised French DPA lists categories of persons allowed to process such personal data: (i) courts, public authorities and legal persons entrusted with a public service, acting within the scope of their functions; (ii) auxiliaries of justice (such as mediators or experts) for the strict exercise of their functions, as well as entities collaborating with judicial entities as determined by Decree; and (iii) persons reusing public information appearing in published rulings, provided that the processing has neither the purpose or effect of allowing the re-identification of the concerned persons.

The revised French DPA also allows natural or legal persons to process information about criminal offences for the purpose of enabling them: (i) to take legal action as a victim or on behalf of such victim; and (ii) to have a ruling enforced, for a duration proportionate to this purpose. Communication to a third party is only possible under the same conditions and to the extent strictly necessary for the pursuit of the same purposes.

Finally, the processing of information about criminal offences is permitted by specified intellectual property rights management agencies for the purpose of defending those rights.

Are there any formalities to obtain consent to process sensitive personal data?

Consent to process sensitive personal data must be explicit. The general restrictions on consent, set out above, will also apply. This suggests a degree of formality, such as ticking a box containing the express words “I consent”. It is unlikely explicit consent could be obtained through a course of conduct.

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Data Protection Officers

When must a data protection officer be appointed?

Both controllers and processors must appoint a data protection officer if: (i) they are a public authority; (ii) their core activities consist of regular and systematic monitoring of data subjects on a large scale; or (iii) their core activities consist of processing special category personal data on a large scale (including processing information about criminal offences).

The revised French DPA provides that controllers processing personal data under the scope of Law Enforcement Directive must appoint a data protection officer (with the exception of persons acting within scope of their judicial activity).

What are the duties of the data protection officer?

The data protection officer must be involved in all data protection issues and cannot be dismissed or penalised for performing their role. The data protection officer must report directly to the highest level of management. Details of the data protection officer must be communicated to the relevant supervisory authority. 

The Article 29 Working Party has issued Guidelines on Data Protection Officers (WP243).

The CNIL has published a Guide on Data Protection Officers setting out the key principles and good practices for companies to appoint a data protection officer and support his or her missions.

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Accountability and Privacy Impact Assessments

Is there a general accountability obligation?

The GDPR adds a new general accountability obligation under which you must not only comply with these new rules, but also be able to demonstrate you comply with them. This means ensuring suitable policies are in place supported by audit and training.

Are privacy impact assessments mandatory?

A privacy impact assessment must be conducted where “high risk” processing is carried out. This includes: (a) systematic and extensive profiling that produces legal effects or significantly affects individuals; (b) processing on a large scale either special categories of personal data or personal data relating to criminal convictions and offences; and (c) systematic monitoring of a publicly accessible area on a large scale (e.g. CCTV). Where the assessment indicates the risk cannot be mitigated, the controller must consult the relevant supervisory authority.

The Article 29 Working Party has subsequently issued Guidelines on Data Protection Impact Assessments (WP 248). It suggests there are nine criteria to consider to determine whether to conduct a privacy impact assessment, and that an assessment should be made if two or more of those criteria are met. This is arguably wider than the criteria set out in the paragraph above

The revised French DPA specifies that controllers processing personal data under the Law Enforcement Directive must conduct a privacy impact assessment when that processing is high risk (for example, when such processing relates to sensitive personal data).

The CNIL has published a list of processing operations for which a privacy impact assessment is mandatory - a list of processing operations for which a privacy impact assessment is not required. The CNIL has also developed an open source tool to help conduct privacy impact assessments, which is available here.

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Rights of Data Subjects

Privacy notices

controller must provide data subjects with a privacy notice setting out how the individual’s personal data will be processed. The privacy notice must contain the enhanced transparency information.

The Article 29 Working Party has issued Guidelines on Transparency (WP260).

It is a general obligation under French law to use the French language when conducting business or dealing with consumers or employees in France. It is very likely this obligation will also apply to privacy notices under the GDPR.

Rights to access information

Data subjects will have a right to access copies of their personal data by making a written request to the controller. The initial request is free, though a charge can be made for subsequent requests. Controllers can refuse the request if it is manifestly unfounded or excessive. The right to obtain a copy of personal data should not adversely affect the rights and freedoms of others. The response must be provided within a month, though this can be extended by two months if the request is complex

The European Data Protection Board has issued Guidelines on rights of access (1/2022).

Rights to data portability

Data subjects will also have a right to data portability where the condition for processing personal data is consent or the performance of a contract. It entitles individuals to obtain any personal data they have “provided” to the controller in a machine-readable format. Individuals can also ask for the data to be transferred directly from one controller to another. There is no right to charge fees for this service.

The Article 29 Working Party has issued Guidelines on data portability (WP242).

Right to be forgotten

data subject can ask that their data be deleted in certain circumstances. However, those circumstances are relatively limited, for example where the processing is based on consent, that consent is withdrawn and there are no other grounds for processing. Even where the right does arise, there are range of exemptions, for example where there is a legal obligation to retain the data. 

The European Data Protection Board has issued Guidelines on the criteria of the Right to be Forgotten in the search engines cases under the GDPR (part 1) (5/2019)

Objection to direct marketing

data subject can object to their personal data being processed for direct marketing purposes at any time. This includes profiling to the extent related to direct marketing.

Other rights

The GDPR contains a range of other rights, including a right to have inaccurate data corrected. There is also a right to object to processing being carried out in the performance of a public task or under the legitimate interests condition

Finally, there are controls on taking decisions based solely on automated decision making that produce legal effects or similarly significantly affects the data subjectThe Article 29 Working Party has issued Guidelines on Automated Decision Making and Profiling (WP251).

In addition, the revised French DPA allows individuals to give instructions regarding the retention, erasure and communication of their data after their death. Such instructions can be revoked or modified at any time.

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Security

Security requirements in order to protect personal data

The GDPR contains a general obligation to implement appropriate technical and organisational measures to protect personal data.

In addition, controllers and processors must ensure, where appropriate: (i) the pseudonymisation and encryption of personal data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of its information technology systems; (iii) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing

Specific rules governing processing by third party agents (processors)

controller must ensure that any processor it instructs will ensure adequate security for personal data and otherwise meet the requirements of the GDPR.

The controller must have written contracts with its processor containing the enhanced processor clauses.

Notice of breach laws

A personal data breach must be notified to the relevant supervisory authority unless it is unlikely to result in a risk to data subjects. The notification must, where feasible, be made within 72 hours. If the personal data breach is a high risk for data subjects, those data subjects must also be notified. 

Specific notice of breach laws apply to the electronic communications sector under national laws implementing the Privacy and Electronic Communications Directive and to operators of essential services and digital service providers under national laws implementing the Network and Information Systems Directive.

The European Data Protection Board has issued Guidelines on Personal Data Breach Notification (9/2022) and Examples regarding Personal Data Breach Notification (1/2021)

Decree n° 2019-536 dated 29 May 2019 lays down two categories of processing that are exempt from the obligation to notify data subjects, namely: (i) processing including personal data likely to allow to identify persons whose anonymity is protected by laws protecting freedom of the press; and (ii) processing of certain health or administrative data where notification is likely to represent a risk for national security, national defence or public security.

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Transfer of Personal Data to Third Countries

Restrictions on transfers to third countries

The GDPR contains a restriction on transborder dataflows. This restriction does not apply if the transfer is to a whitelisted country.

Transfers can be made: (i) pursuant to a set of Standard Contractual Clauses; (ii) pursuant to binding corporate rules; (iii) to an importer who has signed up to an approved code or obtained an approved certification; or (iv) where otherwise approved by the relevant supervisory authority. However, following the decision in Schrems II (C-311/18) any transfer made on this basis must be subject to a transfer impact assessment of the laws of the relevant third country and supplemented by supplementary protections where necessary.

The European Data Protection Board has issued Recommendation on European Essential Guarantees for surveillance measures (2/2020) and a Recommendation on measures that supplement transfer tools (1/2020) to help conduct this transfer impact assessment. The European Commission has also issued an FAQ on the new Standard Contractual Clauses.

Transfers are also possible if an individual derogation applies. These derogations allow a transfer if it: (i) is made with the data subject’s explicit consent; (ii) is necessary for the performance of a contract with, or in the interests of, the data subject; (iii) is necessary or legally required on important public interest grounds, or for legal claims; (iv) is necessary to protect the vital interests of the data subject; (v) is made from a public register; or (vi) is made under the so-called minor transfer exemption. 

The European Data Protection Board has issued Guidelines on derogations applicable to international transfers (2/2018). Finally, the European Data Protection Board has issued draft Guidelines on the interplay between Article 3 and international transfers (2/2018) to help identify when a transfer takes place.

On 7 June 2022, the CNIL published a Factsheet and a dedicated Q&A in relation to transfers based on the use of Google Analytics in which the French authority stated that, regardless of the nature of the transfer and the risk it can present, data controllers must conduct a transfer impact assessment and, where required, implement additional legal, organisational and technical measures to supplement transfer mechanisms.

Notification and approval of national regulator (including notification of use of Standard Contractual Clauses)

In general, there is no need for prior approval from a supervisory authority. However, this depends on the justification for the transfer. 

For example, there will be no obligation to get approval for the use of Standard Contractual Clauses (though it is possible some supervisory authorities may want to be notified of their use). In contrast, it will be necessary to get approval to rely on binding corporate rules, and the supervisory authority must be informed of transfers made using the minor transfers exemption.

Use of binding corporate rules

The GDPR places binding corporate rules on a statutory footing. It will be possible to obtain authorisation from one supervisory authority (subject to approval through the consistency mechanism) that will cover transfers from anywhere in the EU.

In France, a number of binding corporate rules (BCR) were approved by the CNIL under the current law including for Airbus SE, American Express, Arcelor Mittal, Astra Zeneca, Atos, AXA, BMC, Capgemini, Corning, ENGIE, IBM, International SOS, LVMH, Mastercard, Merck & Co, Michelin, Novartis, Salesforce and Schneider Electric.

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Enforcement

Fines

The GDPR is intended to make data protection a boardroom issue. It introduces an antitrust-type sanction regime with fines of up to 4% of annual worldwide turnover or €20m, whichever is the greater. These fines apply to breaches of many of the provisions of the GDPR, including failure to comply with the six general data quality principles or carrying out processing without satisfying a condition for processing personal data.

A limited number of breaches fall into a lower tier and so are subject to fines of up to 2% of annual worldwide turnover or €10m, whichever is the greater. Failing to notify a personal data breach or failing to put an adequate contract in place with a processor fall into this lower tier.

Fines can only be imposed where there is an intentional or negligent infringement of the GDPR, see Deutsche Wohnen (C-807/21).

The EDPB has published Guidelines on the calculation of administrative fines (04/2022).

Imprisonment

The revised French DPA does not modify existing criminal sanctions. The current criminal sanctions include imprisonment for up to five years and fines of up to EUR 300,000 (and up to EUR 1,500,000 for legal entities).

Compensation

Data subjects have a right to compensation in respect of material and non-material damage. This requires more than a mere infringement of the GDPR and there must be actual material or non-material damage, however there is no minimum threshold of seriousness before compensation is available, see Österreichische Post (C-300/21). 

Other powers

Regulators will have a range of other powers and sanctions at their disposal. This includes investigative powers, such as the ability to demand information from controllers and processors, and to carry out audits. They will also have corrective powers enabling them to issue warnings or reprimands, to enforce an individual’s rights and to issue a temporary or permanent ban on processing

Practice

Fines: The most significant fines issued by the CNIL in the recent years are set out below:

  • In December 2021, Google was fined a total of €150 million for non-compliant cookie banners. Its websites offered a button to accept cookies but there was no similar button to reject cookies. The user was required to go through several clicks to reject all cookies. The design of this cookie deposit meant that users were more likely to accept cookie deposits out of convenience, interfering with the freedom of consent of Internet users. It was an aggravating factor that a large number of people were affected and the companies could make significant profits from advertising revenue, attributable to data collected via cookies. The CNIL had previously warned Google about this breach in February 2021. It ordered Google to provide French users an equally easy method of rejecting cookies as accepting them within 3 months of the decision, or to pay €100,000 per day of delay. The fine was apportioned with €90 million to be paid by Google LLC and €60 million to be paid by Google Ireland Limited.
  • In December 2021, Facebook was fined €60 million following complaints that cookies could not be refused as easily they could be accepted. The rationale was the same as the Google case above, as CNIL’s investigation was into both companies. Facebook had to offer French users a means of refusing cookies of equal ease to accepting cookies within 3 months of the CNIL decision, or pay €100,000 per day of delay.
  • In July 2021, private insurer SGAM AG2R La Mondiale was fined €1.75 million. The data controller kept data for an excessively long time, and did not comply with information obligations for telephone canvassing campaigns. This included retention of sensitive health data and banking data beyond the legally permitted retention period, after the contract end date.
  • In December 2020, Amazon Europe Core was fined €35 million for placing cookies on users’ devices without providing them with the information required by Article 82 of the French Data Protection Law. More specifically, the CNIL noted that, regardless of the route taken by the Internet user visiting the website, the latter was either insufficiently or never informed of the existence of cookies being placed on his or her device.
  • In November 2020, Carrefour France was fined €2.25 million, and Carrefour Banque was fined €800 000. For Carrefour France, the CNIL found out several non-compliances to data protection requirements, including incomplete, insufficiently accessible and intelligible information provided to data subjects, excessive data storage duration, and failure to respond to data subjects requesting to exercise their right of access to their personal data or objecting to advertising by SMS or email. For Carrefour Banque, the CNIL ruled that the company failed to process data subjects’ personal data fairly, to inform data subjects in compliance with the requirements of the GDPR and to use cookies lawfully. 
  • In January 2019, Google was fined €50 million for failing to provide transparency and clarity to users when informing them how their data is processed and a lack of valid consent in relation to personalised ads. The fine arose out of complaints from pressure groups - the Austrian organisation "None of Your Business" and the French NGO "La Quadrature du Net".

Other enforcement action: In 2021, the CNIL received 14,143 complaints, representing a 4% increase compared to 2020. 1,436 complaints were related to the right of access (28.7% of them were related to the employment sector) and 973 complaints concerned direct marketing.

In 2021, there were 5,037 notifications of personal data breaches made to the CNIL, representing a massive increase of 79% compared to 2020.   

In 2021, the CNIL led 384 investigations, representing a 55% increase compared to 2020. This resulted in the issuance of 135 formal notices, 18 sanctions and €214 million in fines. Out of those 384 investigations, 118 were carried on site and, 173 were conducted on-line. These online investigations are facilitated by the “Law on consumption” dated 17 March 2014.

In its Annual Report for 2021, the CNIL said its work from 2022 to 2024 will focus on smart cameras, data transfers to clouds and personal data collection through smartphones for the years to come.

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ePrivacy | Marketing and cookies

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National Legislation

ePrivacy laws

The “Trust in the Digital Economy Act” (the “Act”) implemented Article 13 of the Privacy and Electronic Communications Directive on 21 June 2004. The Act is now codified under Article L. 34-5 of the Postal and Electronic Communications Code and is mentioned in Articles L. 222-16 and 223-7 of the Consumer Code.

The Ordinance no. 2011-1012 of 24 August 2011 (the “Ordinance”) implements the amendments to the Privacy and Electronic Communications Directive.

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Cookies

Conditions for use of cookies

The revised French DPA requires data controllers to obtain prior consent from users to store or access cookies after having provided the user with information about the purposes for which cookies are used and about the means to prevent such storage or access.

The revised French DPA explicitly recognises that such consent may result from appropriate settings on a user’s connection device, such as an internet browser, or from any other applications placed under a user’s control.

Prior information and consent requirements do not apply where the cookie’s sole purpose is to enable or facilitate the communication (i.e. technical cookies) or where the cookie is strictly necessary to provide an online communication service requested by the user (e.g. cookies concerning language preferences).

Regulatory guidance on the use of cookies

On 4 July 2019, the CNIL adopted Guidelineswith regard to the conditions for the use of cookies.  In these guidelines, the CNIL considered that: (i) continuing to browse a website, use a mobile application or scrolling the page of a website or mobile application does not constitute clear positive actions which amount to valid consent; (ii) browser settings do not currently allow the user to express the manifestation of a valid consent; (iii) the implementation of “cookies walls” (i.e., the practice of blocking access to a website or application if cookies are not accepted) is forbidden and (iv) operators who use tracking cookies must be able to demonstrate that they have obtained the user consent as understood under the GDPR.

On  17 September 2020, the guidelines of 4 July 2019 were partially revoked and replaced by new Guidelines and Recommendations, in order to take account of the decision of the French Administrative Supreme Court of 4 July 2019 ruling out the prohibition of “cookie walls”. The Court decided that the general prohibition of "cookie walls" initially provided in these guidelines could not be included in a text of soft law as issued by the CNIL and that validity of “cookie walls” must be assessed on a case-by-case basis instead. In this regard, the CNIL has recently published a Factsheet on the criteria to assess the lawfulness of a “cookie wall”. 

More generally, these new guidelines and recommendations relate to the practicalities of obtaining valid consent to cookies and provides concrete examples of the implementation of requirements associated with the use of cookies.

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Marketing by E-mail

Conditions for direct marketing by e-mail to individual subscribers

Direct marketing by e-mail to individual subscribers is permitted if: (i) the subscriber provides “prior consent” having been informed their address will be used for marketing; or (ii) the similar products and services exemption applies.

Direct marketing by e-mail to individual subscribers is also permitted if the e-mail does not have a commercial purpose (e.g., it is for a charitable purpose) provided the individual was informed their address will be used for this purpose and they had the opportunity to object.

“Prior consent” is defined as a “free, specific and informed manifestation of consent to the individual’s personal data being used for direct marketing purposes”.

Conditions for direct marketing by e-mail to corporate subscribers

Direct marketing by e-mail is permitted subject to: (i) prior notification that the e-mail address will be used for marketing purposes; (ii) the recipient having the possibility to object easily and free of charge at the time of collection and, at any time, to further solicitations; and (iii) the marketing e-mail relating to the profession of the recipient.

Regarding corporate subscribers specifically, the rules on consent and objection outlined above do not apply to direct marketing communications sent to generic e-mail addresses such as info@companyname.com, contact@companyname.com and order@companyname.com.

Exemptions and other issues

The sender must include the eCommerce information and provide simple means to freely object to any further similar communications.

However, direct marketing e-mails are prohibited if: (i) the identity of the sender is disguised or concealed; (ii) an opt-out address is not provided to allow the recipient to object to further solicitations; or (iii) the title of the e-mail does not relate to the service or product offered.

SMS/MMS are subject to the rules on direct marketing by e-mail rather than the rules on direct marketing by telephone.

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Marketing by Telephone

Conditions for direct marketing by telephone to individual subscribers (excludes automated calls)

Professionals wishing to engage in direct marketing by phone must inform consumers that: (i) their personal data will be used for direct marketing calls; and (ii) they have the right to register with Bloctel, a direct marketing opposition list.

Professionals cannot call consumers who have registered on Bloctel save where: (i) there is a pre-existing contractual relationship and call is in relation with the corresponding contract; or (ii) the call is to offer subscriptions to newspapers, journals and magazines.

In all cases, the professional must identify themselves on request and allow the individual subscriber to object to further calls. Direct marketing calls cannot be made to individual subscribers who have previously objected.

Conditions for direct marketing by telephone to corporate subscribers (excludes automated calls)

It is not permitted to make direct marketing calls to corporate subscribers who have previously objected to such calls.

Exemptions and other issues

None.

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