By Pascale Gelly  

CNIL fights inappropriate comments towards employees

Service Innovation Groupe France (SIG) provides sales and marketing task forces to businesses needing staff for promotional events.

During an onsite investigation, the CNIL found in SIGs human resources (HR) database various inappropriate comments about personnel, such as "pain in the neck," "hygiene issues (smells)," "toothless and drinking person," "must be overloaded with work--trial before employment court in progress," "would be a thief," "has cancer, won't be able to work," "took [the company] to employment court," "theft in store," "alcoholism problem."

The CNIL first issued a cease-and-desist order requiring SIG to remove these comments from the database and to ensure compliance with the individuals' rights of access, rectification and objection. A second onsite investigation showed that the comments had not been removed and that no action had been taken by SIG to comply with data subjects' rights.

Therefore, the CNIL issued a fine of 40,000 euros.

Businesses should be particularly careful in letting their staff use the free text fields available in HRM and CRM systems, and should audit them regularly to avoid improper comments to be inserted by untrained or rotating staff.

Another black list

Those of you planning a holiday trip to Paris should be aware that the city makes 15,000 bicycles publicly available at almost every street corner ("Velib").

Unfortunately, this service is sometimes misused (2,000 bicycles have been stolen and 1,200 badly damaged); hence the need to implement a "list" for the prevention of risks, which is subject to the CNIL authorization. Wrongdoers risk the suspension of their subscription and a prohibition to use the service for a limited time.

The CNIL has authorized the processing of data about individuals involved in theft or damage of Velib', as well as those who did not pay the associated fee. The authorization was granted taking into consideration the warranties implemented by the controller:

• determined and restricted grounds for registration on the list;
• the verification of the damage by a police officer or a maintenance employee in a written report in the presence of the concerned individual;
• the right for the individual to lodge a claim;
• a notice to Velib' users about the prevention list in the general terms and conditions, in a written letter and at the Velib' stations.

This decision shows, once again, that "blacklists" can be implemented in France provided that adequate guarantees satisfying the CNIL are put in place.

What exactly is the CNIL?

As privacy professionals know, the CNIL ("Commission Nationale de l'Informatique et des Libertes") is the French data protection authority.

But what is it exactly?

Under the Data Protection Act of 6 January 1978, which created the CNIL, it is considered an independent administrative authority. However, the Law of 6 August 2004 adapting the data protection act to the EC Directive 95/46 has greatly modified the role of the CNIL by increasing its powers and giving it the opportunity to issue warnings, sanctions and cease-and-desist orders.

The Conseil d'Etat (administrative court) has therefore considered that the CNIL could, by its nature, composition and competences be characterized as a tribunal in the meaning of article 6-1 of the Convention for the Protection of Human Rights and Fundamental Freedoms. This characterization implies compliance by the CNIL with the rights related to a fair trial. The procedures implemented by the CNIL have taken these principles into consideration.
One may regret, though, that the mission statements of the CNIL for onsite investigations be drafted in general terms such as "verification of compliance with the data protection act.

Pascale Gelly is Avocat à la Cour within SCM Lambot Gelly Soyer. She may be reached at pg@pascalegelly.com.