Google Analytics custom features do not make transfers legal, according to CNIL

CNIL has announced that even with the use of Google Analytics custom features, transfers are still not legal. 

 

CNIL recently announced that even with the use of Google Analytics custom features, transfers are still not legal in the absence of a transfer deal between Europe and the US. This announcement was added in the Q&A on CNIL’s website, as a point of clarification, after numerous businesses hoped that the customization tool could be used to allow data transfers to the US from Europe through Google Analytics. However according to the CNIL, the use of this tool still does not comply with the GDPR despite the precautionary options now available. 

 

While efforts have been made to replace the invalidated Privacy Shield, authorities say there is still a long way to go.

 

Earlier this year, CNIL sent out formal notices to a series of companies after deciding that data transfers to the US via Google Analytics were illegal. This decision was based on the Schrems II decision which invalidated the Privacy Shield two years ago. While a decision to replace the deal was announced, there is still a long way to go. European Commission Vice-President Margrethe Vestager confirmed at the International Cybersecurity Forum earlier this month, that negotiations are “finalised”, however that “a lot of work remains to be done.” 

 

In the absence of the Privacy Shield, CNIL has addressed questions and concerns regarding other solutions that have been offered. 

 

While we await a replacement for the Privacy Shield, CNIL has been very vocal, providing clarification when necessary. The authority addressed a question on the possibility of configuring Google Analytics so as to avoid transferring personal data outside the EU. CNIL’s response to this was an unambiguous “no”, followed by an explanation that “the use of solutions proposed by companies subject to non-European jurisdictions is likely to pose difficulties in terms of access to data.” This remains the case even in the absence of a transfer, as Google has confirmed to CNIL that all data collected by Google Analytics is hosted on US soil.

 

Many of the proposed solutions are not deemed satisfactory as any personal data transferred to the US seems to be at risk. 

 

Google has proposed additional guarantees like anonymisation and encryption but none of these solutions are deemed satisfactory by the CNIL. CNIL acknowledges that Google offers an IP address anonymisation feature. However, this does not apply to all transfers, and Google has been unable to demonstrate that this anonymisation happens before data is transferred to the US. Unique identifiers are also not a great solution as their use can be identified through their association with other data. The CNIL states that the encryption solutions offered by Google were ineffective, as Google offers and saves encryption keys, allowing the company to access personal data if it so wishes. As a result, any companies or organisations who wish to use the tool need to obtain explicit consent from the individuals concerned.

Does your company have all of the mandated safeguards in place to ensure the safety of the personal data you collect or process? Aphaia can help. Aphaia also provides both GDPR and Data Protection Act 2018 consultancy services, including data protection impact assessments, and Data Protection Officer outsourcing. We can help your company get on track towards full compliance. Contact us today.

Cookie assessment criteria published by the CNIL of France

The CNIL of France has published a cookie assessment criteria guide to aid businesses in determining the validity of cookies and other tracers. 

 

The CNIL has published guidelines on the use of cookies and other tracers, which initially prohibited cookie walls as they were seen as a violation of the principle of free consent. A cookie wall requires users to consent to cookies, in order to gain access to a site or service. The CNIL concluded that the validity or legality of cookie walls was better determined on a case by case basis, rather than prohibiting cookie walls altogether. The authority deemed it necessary to publish a guide containing preliminary criteria, to assess the legality of the use of cookie walls, in the absence of a position from the CJEU. 

 

While not prohibited in France, a careful assessment is required prior to the implementation of cookie walls. 

 

Cookie walls require an internet user to accept cookies or other tracking devices in order to access the content of a website. In most cases, there is an alternative, paid option, in the form of a subscription, to compensate for any loss of advertising revenue from targeted ads made possible by the collection of cookies. The validity and legality of cookies is intended to be assessed on a case by case basis based on what alternatives are offered to users if they choose to decline cookies, and how reasonable these alternatives are. This will require a careful assessment of the alternative options, as suggested by the CNIL. 

 

CNIL outlined several key factors which are considered in determining the validity of cookie consent and cookie walls. 

 

While the validity of a cookie wall is to be determined on a case by case basis, there are a few key determining factors which the CNIL highlighted. For one, it matters whether or not the Internet user who refuses cookies still has a fair alternative to access the content. In some cases, paid access can be granted, replacing the cookie wall with a paywall. In cases where there is a paywall to access content, CNIL will consider whether the price is deemed reasonable. This, in most cases, will be determined by the amount of ad revenue which would be lost as a result of the user refusing cookies. Another important point to consider is whether the cookie wall can cover “all” cookies indiscriminately, or just certain types of cookies. 

 

CNIL recommends that the publisher offers a real and fair alternative allowing users access to the site, in the event that they refuse cookies, which does not does not include having to consent to the use of their data. In cases where the user chooses paid access without consenting to cookies, there may be limited cases where cookies can still be deposited. The CNIL stressed that users should be able to accept and refuse cookies based on their purpose, and should be able to access the site setting and revoke consent at any time. 

Does your company have all of the mandated safeguards in place to ensure the safety of the personal data you collect or process? Aphaia can help. Aphaia also provides both GDPR and Data Protection Act 2018 consultancy services, including data protection impact assessments, and Data Protection Officer outsourcing. We can help your company get on track towards full compliance. Contact us today.

Recorded telephone conversations for the establishment of a contract

CNIL has published guidance on the establishment of contacts via recorded telephone conversations. 

 

In the establishment of a contract, it is sometimes necessary to record a telephone conversation as proof of the formation of the contract. Under the law, this is permitted where necessary. Therefore, in order for an organisation  to lawfully record telephone conversations, it must, as data controller, demonstrate that there is no other way to prove that a contract has been formed with the data subject. CNIL has published a report, detailing the factors to be considered when an organisation may need to record phone conversations in the establishment of a contract. 

 

While some contracts can be formed orally, others must be established by a written act.

 

Registration must be necessary to prove the formation of the contract. For written contracts, registration is not necessary in order to establish the formation of the contract. However, when a consumer is contacted by telephone with the aim of forming a contract relating to the sale of goods or the supply of a service, for example, the customer is only bound by this, after having signed and accepted it on a durable medium, like a written contract. The recording of telephone conversations for purposes of proof of the formation of the contract is therefore unnecessary in this context. However, for contracts that can be taken out orally (for example, for the purchase of certain paid services), if the recording of conversations is possible, the principle of data minimization must be respected in the process. 

 

In cases where the contract is established via a telephone conversation, only the part of the conversation relating to the establishment of the contract may be recorded.

 

In cases where contracts can be taken out over a recorded line, unless legal provisions allow it, these recordings may not be permanent or systematic. Only the conversations relating to the establishment of a contract by telephone may be recorded. Therefore, the company or organization will have to provide mechanisms to record the telephone conversation between the phone operator and the consumer only from the moment when the conversation clearly relates to the establishment of a contract . The relevant part of the conversation can only be retained in the absence of any other proof of the formation of the contract. The recording of the telephone conversation also cannot be triggered by default, in an automated way. Ideally, the phone operator would manually trigger the recording, only in cases where the purpose of the conversation is to confirm a contract which cannot be proven by any other means.

 

Processing of personal data which is based on the establishment of the contract is permitted under the GDPR. 

 

When people agree to enter into a contract by telephone, the recordings of the telephone conversations can be processed on the basis of the legal basis of the contract under the GDPR. Article 6(1)(b) GDPR provides a lawful basis for the processing of personal data to the extent that “processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract”.

Does your company have all of the mandated safeguards in place to ensure the safety of the personal data you collect or process? Aphaia can help. Aphaia also provides both GDPR and Data Protection Act 2018 consultancy services, including data protection impact assessments, and Data Protection Officer outsourcing. We can help your company get on track towards full compliance. Contact us today.

Medical data breach leads to major fine from CNIL

Earlier this month, the CNIL imposed a fine of €1.5 million after a medical data breach affecting nearly 500,000 people revealed a company’s security flaws.

 

Early last year, a major data breach affecting nearly 500,000 people was reported. The breach involved information including users’ surnames, first names , social security numbers, names of their prescribing doctors, dates of their examinations, and most critically medical information on conditions (HIV, cancers, genetic diseases, pregnancies, drug treatments followed by the patient, or even genetic data). In February 2021, the CNIL carried out several inquiries into the company DEDALUS BIOLOGY, a software company, which supports medical analysis laboratories. Based on the findings, CNIL concluded that the company had breached several obligations under the GDPR, in particular the obligation to ensure the security of personal data. The CNIL decided to impose a fine of 1.5 million euros and to make this decision public. The amount of this fine was decided based on the seriousness of the violations, but also considered the turnover of the company.

 

CNIL sanctioned the software company for violating several GDPR obligations following the medical data breach.

 

Two companies requested the services of DEDALUS BIOLOGY for the migration from software to another tool. In this case, the company extracted a larger volume of data than was required to perform this task. The company has therefore processed data beyond the instructions given by the data controllers.

This breach of the obligation for the processor to comply with the instructions of the controller is a violation of article 29 of the GDPR. CNIL also fined the company over a breach of the obligation to regulate their processing by a formalized legal act as the maintenance contracts transmitted to CNIL by DEDALUS did not contain the information provided for by article 28-3 of the GDPR which stated that data processing “…shall be governed by a contract or other legal act under Union or Member State law…”

 

During its investigation, CNIL also encountered several technical and organizational faults in terms of security within DEDALUS BIOLOGY with regard to the operations of migrating the software to another. These included the lack of a specific procedure for data migration operations, the lack of encryption of personal data stored on a problematic server, as well as  the absence of automatic deletion of data after migration to the other software. In addition the company’s systems lacked the authentication required from the Internet to access the public area of ​​the server and had user accounts shared between several employees on the private area of the server. DEDALUS also lacked a supervision procedure and security alert escalation on the server. This lack of satisfactory security measures contributed to the data breach which compromised the medical and administrative data of nearly 500,000 people and violated  Article 32 of the GDPR. 

Does your company have all of the mandated safeguards in place to ensure the safety of the personal data you collect or process? Aphaia can help. Aphaia also provides both GDPR and Data Protection Act 2018 consultancy services, including data protection impact assessments, and Data Protection Officer outsourcing. We can help your company get on track towards full compliance. Contact us today.