Privacy & Information Security Law Blog

On November 6, 2018, the French Data Protection Authority (the “CNIL”) published its own guidelines on data protection impact assessments (the “Guidelines”) and a list of processing operations that require a data protection impact assessment (“DPIA”). Read the guidelines.

CNIL’s Guidelines

The Guidelines aim to complement guidelines on DPIA adopted by the Article 29 Working Party on October 4, 2017, and endorsed by the European Data Protection Board (“EDPB”) on May 25, 2018. The CNIL crafted its own Guidelines to specify the following:

• Scope of the obligation to carry out a DPIA. The Guidelines describe the three examples of processing operations requiring a DPIA  provided by Article 35(3) of the EU General Data Protection Regulation (“GDPR”). The Guidelines also list nine criteria the Article 29 Working Party identified as useful in determining whether a processing operation requires a DPIA, if that processing does not correspond to one of the three examples provided by the GDPR. In the CNIL’s view, as a general rule a processing operation meeting at least two of the nine criteria requires a DPIA. If the data controller considers that processing meeting two criteria is not likely to result in a high risk to the rights and freedoms of individuals, and therefore does not require a DPIA, the data controller should explain and document its decision for not carrying out a DPIA and include in that documentation the views of the data protection officer (“DPO”), if appointed. The Guidelines make clear that a DPIA should be carried out if the data controller is uncertain. The Guidelines also state that processing operations lawfully implemented prior to May 25, 2018 (e.g., processing operations registered with the CNIL, exempt from registration or recorded in the register held by the DPO under the previous regime) do not require a DPIA within a period of 3 years from May 25, 2018, unless there has been a substantial change in the processing since its implementation.
• Conditions in which a DPIA is to be carried out. The Guidelines state that DPIAs should be reviewed regularly—at minimum, every three years—to ensure that the level of risk to individuals’ rights and freedoms remains acceptable. This corresponds to the three-year period mentioned in the draft guidelines on DPIAs adopted by the Article 29 Working Party on April 4, 2017.
• Situations in which a DPIA must be provided to the CNIL. The Guidelines specify that data controllers may rely on the CNIL’s sectoral guidelines (“Referentials”) to determine whether the CNIL must be consulted. If the data processing complies with a Referential, the data controller may take the position that there is no high residual risk and no need to seek prior consultation for the processing from the CNIL. If the data processing does not fully comply with the Referential, the data controller should assess the level of residual risk and the need to consult the CNIL. The Guidelines note that the CNIL may request DPIAs in case of inspections.

CNIL’s List of Processing Operations Requiring a DPIA

The CNIL previously submitted a draft list of processing operations requiring a DPIA to the EDPB for its opinion. The CNIL adopted its final list on October 11, 2018, based on that opinion. The final list includes 14 types of processing operations for which a DPIA is mandatory. The CNIL provided concrete examples for each type of processing operation, including:

• processing operations for the purpose of systematically monitoring the employees’ activities, such as the implementation of data loss prevention tools, CCTV systems recording employees handling money, CCTV systems recording a warehouse stocking valuable items in which handlers are working, digital tachograph installed in road freight transport vehicles, etc.;
• processing operations for the purpose of reporting professional concerns, such as the implementation of a whistleblowing hotline;
  processing operations involving profiling of individuals that may lead to their exclusion from the benefit of a contract or to the contract suspension or termination, such as processing to combat fraud of (non-cash) means of payment;
• profiling that involves data coming from external sources, such as a combination of data operated by data brokers and processing to customize online ads;
• processing of location data on a large scale, such as a mobile app that enables to collect users’ geolocation data, etc.

The CNIL’s list is non-exhaustive and may be regularly reviewed, depending on the CNIL’s assessment of the “high risks” posed by certain processing operations.

Next Steps

The CNIL is expected to soon publish its list of processing operations for which a DPIA is not required.