Authors: Denise Lebeau-Marianna, Divya Shanmugathas and Lucie Dubecq-Princeteau

On 15 March 2023, the French Supervisory Authority (the “CNIL”) unveiled in a post its four key priorities regarding its upcoming investigations for 2023 targeting specific sectors (I), to which it added another topic related to DPO in line with the coordinated enforcement framework of the European Data Protection Board to gauge whether DPOs can exercise properly their job (II).

As a reminder, in 2022, the CNIL priority topics were (i) direct marketing (ii) monitoring telework and (iii) the use of cloud computing (see our previous post).

1. The national key priorities for 2023

• Use of “smart” cameras by public stakeholders

With the upcoming 2024 Olympic and Paralympic Games in France and the usage of such devices in large-scale sporting events planned for 2023 (rugby world cup), the CNIL provided guidance and published opinions on the use of so-called “smart” cameras:

• Last July, the CNIL published its position on the deployment of these cameras in public spaces. This document provides guidance on the conditions applicable to the use of this technology which presents high risks to the data subjects’ right to privacy.
• At the end of last year, the CNIL also gave its opinion on the draft Law relating to the 2024 Olympic and Paralympic Games which notably introduces the possibility to implement, on an experimental basis, smart cameras in areas accessible to the public for detecting and reporting in real-time predetermined events likely to threaten the safety of people.

The CNIL’s roadmap for its dawn raids in 2023 is thus to check that the use of “smart” cameras, complies with the legal framework.

• The use of the personal credit repayment incidents by banks

A file named “Fichier des incidents de crédit aux particuliers” (FICP) (personal credit repayment incidents file) held by the Banque de France, includes information on payment incidents related to overdrafts and loans granted for non-professional needs, as well as information on over indebtedness. The banks are required to consult this file before granting a loan. Given the sensitiveness of such file,  the related processing activities represent a high risk for data subjects.

It is therefore paramount to ensure that the entries in such file are accurate and that the data retention term and conditions of management of this file are compliant with the data protection law (e.g., management of data subjects’ rights). The CNIL will also check the measures implemented to ensure the security of the data.

• The access to the electronic patient record in health care institutions

The security of health data has already been under the CNIL’s scrutiny over the past years and subject to investigations in 2020 and 2021 in health care institutions.

For 2023, the CNIL will continue to focus on health care sector. A particular attention will be paid to the conditions of access to the electronic patient record in health care institutions and in particular the technical and organizational security measures implemented to ensure  the security of health data. This decision comes from several claims filed with CNIL for unauthorized access by third parties to patient records held by health care institutions.

• Tracking of users by mobile applications

Phone manufacturers enable applications publishers to track users for advertising, statistical or technical purposes (e.g., Apple IDFA, IDFV and Google AAID). Such identifiers equivalent to cookies are generally used without the user’s information or consent. While the CNIL presented its three steps action plan, last November 2022 to protect privacy in the context of mobile apps usage (see, in French only), several investigations have been carried out by the CNIL on applications accessing identifiers generated by smart phones operating system, without the users’ consent. The CNIL will continue its investigations in 2023.

Last December, the CNIL already issued a fine for an amount of €3 million against a company publishing video games for smartphone and which used Apple’s IDFV identifier for advertising purpose without the users’ valid consent (see, in French only).

2. Support to the coordinated enforcement framework regarding Data Protection Officers

On the same day of the CNIL’s publication, the European Data Protection Board (EDPB) made a press release regarding the launch of a coordinated enforcement to assess whether the  Data Protection Officers (DPO) have the position required by the GDPR in their organization. The CNIL will verify the conditions of appointment  and modalities of exercise of the DPO function.

In France, the CNIL has already published a practical guide on DPO (see our previous post). In line with EDPB, it is likely that the CNIL will send questionnaire for fact finding or determine if an investigation is relevant and can conduct investigations. The results of this initiative will be analyzed in a coordinated manner and the Supervisory Authorities will decide whether national supervision and enforcement actions would be necessary. The EDPB will publish a report on the outcome of this analysis in an aggregated format.

Once again, the coming year promises to be a busy one for the CNIL and organizations targeted by this new annual dawn raid program.

For more information, please contact denise.lebeau-marianna@dlapiper.com, Partner.