CNIL (France) - SAN-2021-022
From GDPRhub
| CNIL - SAN-2021-022 | |
|---|---|
 | |
| Authority: | CNIL (France) |
| Jurisdiction: | France |
| Relevant Law: | Article 5(1) GDPR Article 13(2) GDPR Article 60 GDPR |
| Type: | Investigation |
| Outcome: | Violation Found |
| Started: | |
| Decided: | 30.12.2021 |
| Published: | |
| Fine: | 120000 EUR |
| Parties: | n/a |
| National Case Number/Name: | SAN-2021-022 |
| European Case Law Identifier: | n/a |
| Appeal: | Unknown |
| Original Language(s): | English |
| Original Source: | EDPB (in EN) |
| Initial Contributor: | n/a |
The French DPA fines company for lack of data retention procedures, lack of information in privacy policy and non-compliance with data erasure requests.
English Summary
Facts
A company selling furniture with its main establishment in France undertook an investigation by the French DPA. The investigations were performed both online and on-site. The investigation revealed that the company had no data retention procedures in place, and that personal data was not regularly deleted or archived. The investigation also revealed that the company did not provide its customers with information about the legal basis for processing or about the data retention period. Lastly, the investigation revealed that customer accounts belonging to data subjects who had requested data erasure, had not in fact been deleted but instead simply deactivated.
The French DPA, acting as lead supervisory authority, sent a draft order to the other supervisory authorities involved. The Berlin supervisory authority objected in accordance with art. 60(4) and requested that the draft order be turned into a draft penalty, and more specifically an administrative fine. The furniture company contested this objection, arguing that the company had very few sales in Germany.
Holding
The French DPA first held that the Berlin DPA's objections to the draft decision had been relevant, and that the number of sales in Germany were irrelevant under Chapter VII GDPR. The French DPA amended its original draft to a draft penalty.
The French DPA subsequently held that the lack of an implemented data retention procedure constituted a breach of article 5(1) GDPR. The lack of information about the date retention procedures provided in the online store of the company constituted a breach of article 13 GDPR. The DPA noted that the link between these two breaches did not prevent them from both being sanctions as separate breaches.
The DPA furthermore held that the obligation to comply with requests for erasure under article 17 GDPR had been breached.
The DPA imposed an administrative fine of EUR 120,000.
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English Machine Translation of the Decision
The decision below is a machine translation of the English original. Please refer to the English original for more details.
Decision of the Restricted Committee No.SAN-2021-022 of 30 December 2021
concerning
The Commission Nationale de l’Informatique et des Libertés (CNIL - the French Data
Protection Authority), met in its Restricted Committee consisting of ,
Having regard to Regulation (EU) 2016/679 of the European Parliament and of the Council of
27 April 2016 on the protection of personal data and on the free movement of such data;
Having regard to the French Data Protection Act No. 78-17 of 6 January 1978, in particular
articles 20 et seq.;
Having regard to Decree No. 2019-536 of 29 May 2019 implementing Act No. 78-17 of 6
January 1978 on data protection;
Having regardto Decision No. 2013-175 of 4 July2013 adoptingthe internal rules of procedure
of the CNIL;
Having regard to Decision No. 2019-084C of 24 April 2019 of the CNIL Chairman to instruct
the secretary general to carry out or have a third party carry out a task to verify the processing
implemented by that organisation or on behalf of ;
Having regard to the decision of CNIL’s Chairman appointing a rapporteur before the
Restricted Committee of 12 April 2021;
Having regard to the report of , commissioner and rapporteur, notified
to on 9 July 2021;
Having regard to the written observations made by on 3 September 2021;
Having regard to the other documents in the file;
The following were present at the Restricted Committee session on 16 September 2021:
- , commissioner, his report having been read;
As representatives of :
-
-
-
-
with addressing the session last.
The Restricted Committee adopted the following decision:
I. Facts and proceedings, 1. (hereinafter “the company”) is a public limited company with a Board of Directors
and with share capital of located at Its
main activity is the sale of furniture on the Internet and in store.
2. started its business in 2007 and has approximately employees. In 2020, it
generated turnover of with a net loss of .
3. markets its products in France and several European Union countries from the
website“ ” (hereinafter “the website”). It alsohas twostores inFranceowned
by its subsidiary,
4. Pursuant to Decision No. 2019-084C dated 24 April 2019 of the Chairman of the Commission
nationale de l’informatique et des libertés (hereinafter “CNIL” or “the Authority”), a CNIL
team carried out an online investigation into the processing accessible from the domain
on 9 May 2019, and an on-site investigation at on 5 June 2019.
The purpose of these investigations was to verify the company’s compliance with all the
provisions of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27
April 2016 (hereinafter “the Regulation” or “GDPR”) and with amended Act No. 78-17 of 6
January 1978 on data protection (hereinafter “the amended Act of 6 January 1978” or “the
French Data Protection Act”).
5. In particular, the investigations focused on the processing of personal data of the company’s
customers and prospective customers. The checks performed concerned the retention periods
of the personal data, the information brought to the attention of the data subjects concerning the
processing carried out by the company, compliance with data subjects’ requests for erasure of
their data, the obligation to provide a legal act for the processing operations carried out on
behalf of the data controller as well as the obligation to ensure data security.
6. At the end of the checks, report no. 2019-084/1 and no. 2019-084/2 were notified to
in two letters dated 15 May and 11 June 2019. The company sent the Authority the additional
documents requested at the end of the investigation by email on 12 June 2019.
7. By email of 22 August 2019, the company sent the investigation team several additional
documents, relating in particular to the change in the company’s name, the privacy policy
displayed in store or in emails sent at the time of the creation of a user account.
8. As the investigations establishedthe cross-border nature of the processing concerned, the CNIL
informed all European supervisory authorities on 1 July 2020, in accordance with Article 56 of
the GDPR, of its competence to act as lead supervisory authority. Seven authorities declared
themselves involved in this procedure, within the meaning of Article 4 (22) of the GDPR.
9. On 5 October 2020, the CNIL Chairman submitted a draft order to the seven authorities
concerned. Following this communication, the Berlin authority raised a relevant and reasoned, objection within the meaning of Article 60 of the GDPR, requesting that the draft order be
transformed into a draft penalty, and more specifically an administrative fine. In support of this
request, the authority concerned pointed out, in particular, the number of data subjects and the
duration of the violations.
10. In order to examine these elements, the Authority’s Chairman appointed
as rapporteur on 12 April 2021, pursuant to Article 39 of Decree No. 2019-536
of 29 May 2019 implementing the amended Act of 6 January 1978 (hereinafter the “Decree of
29 May 2019”).
11. At the end of his investigation, on 7 July2021, the rapporteur sent a report detailing
the breaches of the GDPR that he considered to have occurred in this case and indicating to the
companythat,inviewofthesummerbreak,it hadanadditionalperiodtothe onemonthinitially
provided for in which to submit its written observations pursuant to the provisions of Article
40 of the Decree of 29 May 2019. It was also given a letter informing it that the case file was
on the agenda of the Restricted Committee of 16 September 2021.
12. This report proposed to the Authority’s Restricted Committee to impose an injunction to make
the processingcompliant with theprovisions ofArticles 5(1)(e),13, 17, 28and32 of the GDPR,
accompanied by a penalty per day of delay at the end of a three-month period following
notification of the Restricted Committee’s decision, as well as an administrative fine. It also
proposed that this decision be made public and that the company no longer be identifiable by
name upon expiry of a two-year period following its publication.
13. On 3 September 2021, the company submitted observations through its counsel.
14. The company and the rapporteur presented oral observations at the Restricted Committee’s
session.
II. Reasons for the decision
15. According to Article 56(1) of the Regulation “the supervisory authority of the main
establishment or sole establishment of the controller or processor shall be competent to act as
lead supervisory authority regarding the cross-border processing carried out by that controller
or processor, in accordance with the procedure laid down in Article 60”.
16. In this case, the Restricted Committee found, firstly, that the company’s registered office has
been in France since the creation of the company in 2007, that the company has been entered
in the Trade and Companies Register in France since its inception and that it does not have any
other establishment in the EU.
17. It follows from the above that the CNIL is competent to act as the lead supervisory authority
for the cross-border processingimplemented bythis company, in accordance with Article 56(1)
of the Regulation., 18. In accordance with the cooperation and consistency mechanism provided for in Chapter VII of
the GDPR, on 1 July 2020, CNIL informed all European supervisory authorities of its
competence to act as the lead supervisory authority concerning the cross-border processing
carried out by the company, thus opening the notification procedure for the relevant authorities
in this case.
19. The supervisory authorities of the following countries were affected by this procedure:
Germany, Belgium, Spain, Italy, Luxembourg and the Netherlands.
20. Pursuant to Article 60(5) of the GDPR, the revised draft decision adopted by the restricted
formation was transmitted to these supervisory authorities on 15 December 2021.
21. On 29 December 2021, none of the supervisory authorities concerned had raised any relevant
and reasoned objections to the draft decision, so that, pursuant to Article 60(6) of the GDPR,
they are deemed to have approved it.
A. Regarding the proceedings
22. In defence, the company contests the objection made by the Berlin supervisory authority to the
CNIL’s draft order, by which the authority requested the company be given an administrative
fine. The company considers that it should have been the subject of an order, as initially
proposed by the CNIL, and not penalty proceedings before the Restricted Committee.
23. In particular, the company expresses its surprise at the importance given to Berlin’s objection,
while the sales made bythe companyin Germany only represented 3.7% of its turnover in 2020
with a German customer base of 11,168 customers.
24. The Restricted Committee notes first of all that, as part of the cooperation process set up by the
GDPR, all supervisory authorities concerned within the meaning of Article 4(22) of the GDPR
may issue relevant and reasoned objections to the draft decision submitted to them by the lead
supervisory authority. It is then the responsibility of the lead supervisory authority to decide
whether to uphold or reject the objections made, which was done in this case by the CNIL’s
Chairman, in accordance with the provisions of Article 52 of Decree No. 2019-536 of 29 May
2019.
25. The Restricted Committee then notes that the criteria for determining whether a supervisory
authority is concerned are set out in Article 4(22) of the GDPR and that, therefore, the turnover
of a company in a Member State of the European Union or the number of customers concerned
are irrelevant, provided that these criteria are met, which is the case here.
26. In addition, while indicating that the assessment of the follow-up given to the objection made
by Berlin’s supervisoryauthoritywas the responsibilityof the CNIL’s Chairman, the Restricted
Committee emphasises that this objection was part of the cooperation and consistency
mechanism provided for in Chapter VII of the GDPR intended to ensure harmonisation of the
implementation of this regulation, in particular regarding the application of supervisory
authorities’ enforcement policy.,27. Finally, the RestrictedCommitteenotes that,with regardtotheobjectionrelatingto the absence
of a prior order, the Conseil d’Etat ruled (EC, 9 October 2020, SERGIC, no. 433311) that it
“clearly emerges [from the provisions of Article 20 of the amended Act of 6 January 1978], that
the imposition of a penalty by the CNIL’s Restricted Committee is not subject to CNIL’s
Chairman giving the data controller or its data processor a prior order. […]”.
28. In light of these elements, the Restricted Committee considers that the CNIL has complied with
the procedure applicable under the national provisions and the GDPR.
B. Regarding the breach of the obligation to specify and comply with a personal data
retention period in proportion to the purpose of the processing in accordance with
Article 5(1)(e) of the GDPR
29. According to Article 5(1)(e) of the Regulation, personal data must be “kept in a form which
permits identificationofdata subjects for nolongerthanis necessary for thepurposes for which
the personal data are processed; personal data may be stored for longer periods insofar as the
personal data will be processed solely for archiving purposes in the public interest, scientific
or historical research purposes or statistical purposes in accordance with Article 89(1) subject
to implementation of the appropriate technical and organisational measures required by this
Regulation in order to safeguard the rights and freedoms of the data subject (“storage
limitation”)”.
30. The rapporteur noted that during the on-site investigation of 5 June 2019, the company had
indicated to the investigation team that no retention period for personal data of customers (who
are according to the company the persons who have created an account and placed an order) or
prospective customers (who are according to the company the persons who contact
in order to obtain information on the products and services offered and who subscribe to the
newsletter) had been determined or implemented by the company. The company also informed
the investigation team that it did not carry out any regular deletion or archiving of such data at
the end of a defined period, thereby retaining it in an active database, while its processing was
no longer necessary in view of the purpose for which it was initially collected.
31. In defence, in its observations of 3 September 2021, the company firstly argued that a data
retention period policy applicable to customers and prospective customers was defined from
the on-site investigation on 5 June 2019, so that it could not be accused of any breach under the
definition of retention periods. However, it admits that at the time of the investigation there was
no functionality to determine the date of a user’s or prospective user’s last activity on their
account and that this element was therefore not taken into account.
32. The company also indicated that the data of customers and prospective customers used for the
purposes of marketing or managing their account was now stored in the active database until
their account is deleted or, in the event of inactivity, for three years from the last time they
signed into their account, their last contact with the company or their last order online or in
store. At the end of those periods, the company specified that only the data necessary for pre-
litigation or litigation purposes is retained and archived until the date corresponding to the
statutory time limit justifying their retention, after which they would be deleted.,33. According to the Restricted Committee, with regard to the definition of retention periods
applicable to the data of s customers and prospective customers, it should first be
noted that on the date of the investigation of 5 June 2019, the company indicated to the
investigation team that it had not determined and implemented any retention period for the
personal data of customers and prospective customers.
34. The Restricted Committee then notes that the investigation team observed the presence, in an
active database, of personal data of 550,645 customer accounts created since the start of the
business in 2007. The company informed the investigation team that it kept in a database the
personal data for 310,198 user accounts created without any order having been placed for more
than three years or relating to 128,712 user accounts created but not having placed an order
since 2007.
35. Therefore, whereas the Restricted Committee notes that now implements retention
periods, compliance with which makes it possible to comply with the provisions of Article
5(1)(e) of the GDPR – by ensuring that the data is not stored for longer than necessary in view
of the purposes for which it is processed – it considers, in any event, that on the day of the
investigation, the company had not defined and implemented any satisfactory retention period
policy, or data deletion procedure at the end of the period for which the processing of the data
was necessary and justified, or even an archiving procedure, and that it therefore kept personal
data for excessive periods.
36. With regard to all of these elements, the Restricted Committee considers that the breach of
Article 5(1)(e) of the GDPR is established.
37. It points out, however, that the changes made by the company during the penalty proceedings
enabled its compliance with the Regulations.
C. Regarding the breach of the obligation to inform individuals pursuant to Article 13 of
the GDPR
38. Article 13 of the GDPR requires the data controller to provide, at the time the data is collected,
informationonits identityand contact details andthat of its data protectionofficer, thepurposes
and legal basis of the processing, the recipients or categories of recipients of the personal data,
information on transfers of personal data where applicable, the retention period of the personal
data, the rights of individuals and the right to lodge a complaint with a supervisory authority.
39. The rapporteur notes that, during the checks carried out online on 9 May 2019 and then on site
on 5 June 2019, the investigation team found that the information made available to users of
the website and customers, during their visit to the store, was not complete within the meaning
of Article 13 of the Regulation. Certain mandatory information provided for by this Article –
namely the legal bases for processing and the data retention periods – was not brought to the
attention of the data subjects on the website or in store, either through the
“Privacy Policy” on the website or the document entitled “Privacy and protection of personal
data collected in store” placed on the store’s sales counter.,40. In its observations in defence, the company did not dispute that no information on the legal
bases was made available to the data subjects in its privacy policy. However, it argued that the
document entitled “Privacy and protection of personal data collected in store” placed on the
store’s sales counter did not contain information on the legal bases of processing because its
“purpose was togivethemain information” whilereferringtotheamendedprivacypolicymade
available on the website, which constitutes additional information and is
more complete. The company also argued that the lack of information related to data retention
periods was only a repeat of the breach of the principle of limiting retention periods.
41. The company added that it had drafted, as part of the proceedings, a new privacy policy which
now includes all the missing information, and which has been made available on the
website in order to provide information that complies with the requirements of the
GDPR.
42. The Restricted Committee first of all notes that, with regard to information relating to the legal
bases, the company acknowledged that such information was not present in the privacy policy
accessible from the website and to which the information document on data
protection, located in the store, refers as stated by the investigation team.
43. The Restricted Committee also notes that, until the penalty proceedings, the data subjects were
not informed of all the legal bases of the processing carried out, in breach of the provisions of
Article 13 of the GDPR.
44. The Restricted Committee then notes that the investigation team found, during the investigation
of 5 June 2019, that the information on retention periods was not included in the privacypolicy.
The company also acknowledged this specifying that the information was incomplete due to no
definition and implementation of a personal data retention period policy.
45. Under such circumstances, the Restricted Committee considers that the breach of Article 13 of
the GDPR is established on this point, since the information on the retention periods is among
the information that must be communicated, in that it makes it possible to guarantee fair and
transparent processing of the personal data concerned. Thus, for example, information on
retention periods allows data subjects to know how long the data is kept by the controller and,
consequently, for how long they can exercise their right of access.
46. The Restricted Committee also considers that the link between the company’s failure to
implement data retention periods and the lack of information for individuals does not prevent
these two breaches existing as such.
47. In light of the above, the Restricted Committeeconsiders that the companydid not complywith
the provisions of Article 13 of the GDPR.
48. The Restricted Committee nevertheless notes that, as part of the penalty proceedings, the
company demonstrated having made its privacy policy compliant, which now contains the, notices concerning retention periods for the data processed and complete information on the
legal bases of the processing, to which the information document displayed in store refers.
D. Regarding the breach of the obligation to comply with requests to delete personal data
pursuant to Article 17 of the GDPR
49. Under Article 17 of the GDPR, the data subject has the right to “obtain from the controller the
erasure of personal data concerning him or her without undue delay and the controller shall
be obliged to erase personal data without undue delay where one of the following grounds
applies:
a) the personal data are no longer necessary for the purposes for which they were collected or
otherwise processed;
b) the data subject withdraws consent on which the processing is based according to point (a)
of Article 6(1) (...) and where there is no other legal ground for the processing;
c) the data subject objects to the processing pursuant to Article 21(1) and there are no
overriding legitimate grounds for the processing, or the data subject objects to the processing
pursuant to Article 21(2) (...)”.
50. The rapporteur notes that during the investigation on 5 June 2019, the investigation team was
informed that when an individual requests the deletion of their account, the company
deactivates the account in question, preventing the individual from logging in and blocking the
sending of marketing messages. The team thus noted the presence in the database of the
personal data of a customer of the company who had previously made a request by email for
deletion. Access to their account had simply been disabled.
51. In defence, the company first demonstrated the deletion of the data of the customer who had
exercised their right to erasure of data after the CNIL’s investigation. It then stated that it had
taken various measures to improve its internal procedure for managing requests to exercise
rights, by centralising the receipt of requests, by putting a form for exercising rights online
andbycreatingtheemail address “dp ”,dedicatedtoquestionsaboutpersonal
data and managed by the company’s data protection officer. In addition, the company
indicated that it had developed a document containing letter templates for responding to
requests to exercise rights, including a letter for responding to requests for erasure.
52. The Restricted Committee notes that at the time of the investigation of 5 June 2019, when a
request for deletion was sent to it, the company simply deactivated the account of the data
subject without deleting their personal data, namely their surname, first name, email address,
postal address and telephone number, which was actually observed by the CNIL’s team
during the checks.
53. However, the Restricted Committee notes that when a person requests the erasure of their
personal data, the data controller or its data processor must, in principle, actually delete the
data once the conditions set out in Article 17 of the GDPR are met.,54. The Restricted Committee considers that whereas, after a request for deletion, certain
personal data of customers may be kept in intermediate storage for specific purposes, in
particular for legal obligations or evidential purposes or when the company has an overriding
legitimate ground, that which is not necessary in order to comply with such obligations or
purposes must be deleted after the exercise of this right, provided that the conditions laid
down in Article 17 of the GDPR are met.
55. In view of the foregoing, the Restricted Committee considers that the breach of Article 17 of
the GDPR is established.
56. However, it notes that, as part of the penalty proceedings, the company has demonstrated
having taken measures to ensure compliance with this regulation.
E. Regarding the failure to provide a legal act for the processing operations carried out on
behalf of the data controller pursuant to Article 28 of the GDPR
57. Article 28 of the Regulation provides that the processing carried out by a data processor on
behalf of a controller is governed by a contract which defines the subject-matter and duration
of the processing, the nature and purpose of the processing, the type of personal data, the
categories of data subjects and the obligations and rights of the controller. This contract also
provides for the conditions under which the data processor shall carry out the processing
operations on behalf of the data controller.
58. The rapporteur notes that, regarding the relations with its processors, the company sent two
quotes countersigned with whichdid not containanyof the clauses laiddown
in Article 28 of the GDPR and did not provide any legal act to govern its processing
relationship with .
59. In defence, the company disputes these facts, and indicates that an agreement relating to the
data processing had been signed by on 17 April 2018, but that it had not been
sent to the investigation team due to the inaccurate nature of its request for supporting
documents made in the on-site investigation report. The company acknowledges the absence
of an act to govern its relationship with .
60. The Restricted Committee notes that the data controller and the processor must enter into a
contract which includes all the mandatory information laid down in Article 28 of the GDPR
in order to organise their respective relationships and data protection obligations.
61. In this case, the Restricted Committee notes that the processing relationship with
was governed by a legal act at the time of the investigation carried out on 5
June 2019, under the provisions of Article 28 of the GDPR. However, on the day of the
investigation, the processing relationship with - which collects and
records, on behalf of , customer data for the purposes of creating a customer
account at the time of their visit to the store - was not governed by any legal act.,62. The Restricted Committee therefore considers that on the dayof the investigation, the breach
relating to Article 28 is established as regards the processingrelationship between
and due to the absence of a contract specifying in particular the data
controller’s rights and obligations and the conditions under which the data processor should
carry out the processing operations on behalf of the data controller.
63. It nevertheless highlights that, as part of the penalty proceedings, the company provided
evidenceofaprocessingagreementsignedwith on26August 2021, which
meets the requirements of Article 28 of the GDPR.
F. Regarding the breach of the obligation to ensure the security of personal data pursuant
to Article 32 of the GDPR
64. Under Article 32 of the GDPR: “1. Taking into account the state of the art, the costs of
implementation and the nature, scope, context and purposes of processing as well as the risk
of varying likelihood and severity for the rights and freedoms of natural persons, the
controller and the processor shall implement appropriate technical and organisational
measures to ensure a level of security appropriate to the risk, including inter alia as
appropriate:
a) the pseudonymisation and encryption of personal data;
b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of
processing systems and services;
c) the ability to restore the availability and access to personal data in a timely manner in
the event of a physical or technical incident;
d)a process for regularly testing, assessing and evaluating the effectiveness of technical and
organisational measures for ensuring the security of the processing[…]”.
65. Firstly, the rapporteur notes that at the time of the online investigation carried out on 9 May
2019, authentication when creating a customer account on the website
was based on a password composed only of a single numeric character, such as “1”, without
any criteria for the complexity of the password being provided.
66. In defence, the company does not dispute these facts, but maintains that the security
obligation resulting from Article 32 of the GDPR is a best efforts obligation, not a
performance obligation, so the controller’s security obligation is to implement measures to
reduce risks to an acceptable level, without it being compulsory, or even possible, to obtain
a level of security so that the risks have no effect. The company also emphasises that the
assessment of compliance with the security obligation by the controller requires
consideration of the impact on the data subjects and its severity according to the categories
of personal data concerned by the processing. It argues that, in the course of its business, it
only collected and processed standard personal data, without any serious impact for the data
subjects.,67. The Restricted Committee considers that the length and complexity of a password remain
basic criteria for assessing its strength. It noted in this respect that the need for a strong
password is also highlighted by ANSSI.
68. For the sake of clarity, the Restricted Committee notes that in order to ensure a sufficient
level of security and satisfy the password strength requirements, when authentication relies
solely on an identifier and password, the CNIL recommends, in its Decision No. 2017-012
of 19 January2017, that the password have at least twelve characters - containing at least one
upper-case letter, one lower-case letter, one number and one special character - or at least
eight characters - containing three of these four characters - if it is accompanied by an
additional measure such as, for example, the timing of access to the account after several
failures (temporary suspension of access, the duration of which increases as attempts are
made), setting up a mechanism to guard against automated and multiple attempts (e.g. a
“captcha”) and/or locking the account after several failed login attempts.
69. Inthis case,the RestrictedCommitteeconsiders that,in viewof the rules governingpassword
composition, the strength of the passwords accepted by the company - containing one single
number, such as “1”, with no criteria for the complexity of the password being provided -
was too weak, risking the related accounts and personal data they contain being
compromised.
70. The Restricted Committeealso considers that thelackof collectionof so-calledsensitivedata
by the company, which indicates only collecting identifying or contact data, does not prevent
the occurrence of malicious acts such as phishing, which is mainly based on the use of
accurate and directly identifying data in order to create confusion for the user who is the
subject of it.
71. In these circumstances, the Restricted Committee considers that the respondent company’s
password management policy was not sufficiently robust and binding to ensure data security
within the meaning of Article 32 of the GDPR.
72. However, it notes that, in the course of the penalty proceedings, the company indicated that,
with regard to user accounts, it now requires a strong password comprising a minimum of
twelve characters, including at least one upper-case letter, one lower-case letter, one numeric
character and one special character, which was corroborated by supporting documents.
73. Secondly, the rapporteur notes that the hash function used for the storage of account
passwords of customers using the website was obsolete (MD5).
74. In defence, the company does not dispute these facts.
75. The Restricted Committee emphasises that since the algorithm of this hash function is
obsolete and has for a long time had well-known vulnerabilities, making it liable to be easily
“broken”, this hash function no longer guarantees the integrity and confidentiality of
passwords in the event of a brute force attack after compromise of the servers hosting them.
Thus, the use of this algorithm would allow a person with knowledge of the hashed password, to decrypt it without difficulty in a very short time (e.g. by means of freely accessible
websites that allow the value corresponding to the password hash to be retrieved).
76. In these circumstances, in view of the risks incurred by the individuals mentioned above, the
Restricted Committee considers that the hash function used by the company did not make it
possible to guarantee the securityof the data of its 550,000 customers, within the meaning of
Article 32 of the GDPR.
77. However, it notes that, as part of the penalty proceedings, the company demonstrated having
implemented a satisfactory hashing function, in BCRYPT, for all customers’ account
passwords.
78. Thirdly, the rapporteur notes that the company’s employees accessed the “read/write”
version of ’s database via a joint account for four employees, which is not a
satisfactory measure to ensure data security.
79. In defence, the company argues that the rapporteur did not take into account the complexity
of the password kept secret between the four employees authorised to access the “read/write”
version of the database, nor of the authentication system based on the network addresses
allowing for traceability of the access and actions of these four authorised employees.
80. The Restricted Committee notes that assigning a unique identifier per user and prohibiting
shared accounts are among the essential precautions to guarantee effective traceability of
access to a database. It also emphasises that the use of shared access by several people does
not make it possible to accurately attribute the actions carried out on the equipment in the
event of simultaneous login-in, complicating for example audits of the use of the shared
account. In this sense, ANSI recommends using, by default, individual administration
accounts and specifies that generic accounts on the equipment should not be used, or then
exceptionally and restricted to a very limited number of administrators, since only the
creation of individual accounts allows for the implementation of a relevant access control
and the attribution of the actions carried out by each of the administrators.
81. In this case, the sharing of the account allowing access to the “read/write” version of the
database by four employees does not make it possible to guarantee proper authentication of
users and, consequently, effective management of accreditations and proper traceability of
access. The Restricted Committee observes that, for example, in the event of deletion or
modification of data in the database, it would be complicated to attribute responsibility to
one of the four authorised individuals if several of them were connected at the same time to
this generic account.
82. Therefore, such a lack of traceability of access does not allow for the identification of
fraudulent access or of the individual causing the deterioration or deletion of personal data.
83. In these circumstances, the Restricted Committee considers that the use of a joint account
shared by four employees does not guarantee data security within the meaning of Article 32
of the GDPR.,84. It notes, however, that the company justified, during the proceedings, having set up a single
sign-on system for each user from the creation of individual accounts for access to the
database in order to ensure more detailed traceability of database access.
85. In view of all the above elements, the Restricted Committee considers that the breach of
Article 32 of the GDPR is established.
86. However, the Restricted Committee notes that, as part of the penalty proceedings, the
company has demonstrated having taken all measures to ensure compliance with this
regulation.
III. Regarding corrective powers and their publication
87. Under the terms of Article 20 III of the amended Act of 6 January 1978:
“When the controller or its processor fails to comply with the obligations resulting from
Regulation (EU) 2016/679 of 27 April 2016 or this law, the chairman of the CNIL may also,
if applicable, after sending the warning provided for in point I of this article or, where
applicable,inadditionto anorderprovidedforinII,contacttheCNIL’sRestrictedCommittee
with a view to the announcement, after adversarial proceedings, of one or more of the
following measures: […]
2. An injunction to make the processing compliant with the obligations resulting from
Regulation (EU) 2016/679 of 27 April 2016 or this law or to comply with the requests made
by the data subject to exercise their rights, which may be accompanied, except in cases where
the processing is implemented by the State, with a penalty fine not exceeding 100,000 euros
per day of delay from the date fixed by the Restricted Committee; […]
7. With the exception of cases where the processing is implemented by the State, an
administrative fine may not exceed 10 million euros or, in the case of a company, 2% of the
total annual global turnover of the previous financial year, whichever is the greater. In the
cases mentioned in 5 and 6 of Article 83 of Regulation (EU) 2016/679 of 27 April 2016, these
upper limits shall be increased, respectively, to 20 million euros and 4% of the turnover. In
determining the amount of the fine, the Restricted Committee shall take into account the
criteria specified in the same Article 83.”
88. Article 83 of the GDPR states that “Each supervisory authority shall ensure that the
imposition of administrative fines pursuant to this Article in respect of infringements of this
Regulation referred to in paragraphs 4, 5 and 6 shall in each individual case be effective,
proportionate and dissuasive”, before specifying the elements to be taken into account when
deciding whether to impose an administrative fine and when deciding on the amount of that
fine.
89. Firstly, on the principle of imposing a fine, the company maintains that such a measure is
not justified. The company asserts that it has complied with its legal obligations and that it, has cooperated with the CNIL in a diligent manner and in good faith since the start of the
proceedings. It therefore argues that imposing an administrative fine would go against the
principles of the need for penalties and proportionality. It points out in particular that it has
never been penalised by the Restricted Committee, that the aforementioned breaches do not
inanywayconstituteadeliberatebreachoftheGDPR,thatthedatasubjectshavenotsuffered
any damage, and that no specific data referred to in Articles 9 and 10 of the GDPR is
concerned.
90. The Restricted Committee notes that, in imposing an administrative fine, it must take into
account the criteria specified in Article 83 of the GDPR, such as the nature, gravity and
duration of the infringement, the measures taken by the controller to mitigate the damage
suffered by the data subjects, the degree of cooperation with the supervisory authority and
the categories of personal data concerned by the infringement.
91. Firstly, the Restricted Committee notes that the company has demonstrated significant
negligence with regard to the fundamental principles of the GDPR, since five breaches have
been established, in particular concerning the principle of limiting the data retention period,
the obligation to inform data subjects of the processing of their personal data and the
obligation to respect their rights.
92. The Restricted Committee then notes that at least some breaches have been established over
a period of several years and have affected a large number of people, almost 550,000
individuals, established in France and in six other Member States of the European Union.
93. The Restricted Committee also notes that, within the framework of the penalty proceedings,
thecompany’scooperationwith thesupervisoryauthoritymeetstheobligationofcooperation
laid down in Articles 31 of the GDPR and 18 of the Act and cannot constitute a level of
cooperation exceeding that which is reasonably expected. Therefore, the company’s
cooperation with the CNIL as part of the penalty proceedings cannot be considered as an
extenuating circumstance when imposing an administrative fine.
94. In addition, the Restricted Committee notes that whereas the company only processes
standard personal data, it is still required to implement appropriate technical and
organisational measures in order to ensure a level of security for this data appropriate to the
risk, in accordance with Article 32 of the GDPR and in accordance with the principles set out
in Article 5 of the GDPR.
95. Finally, the Restricted Committee notes that compliance measures were only put in place by
the company following the penalty proceedings and that they did not exempt it from its
responsibility for the past.
96. Consequently, the Restricted Committee considers that an administrative fine should be
imposed in view of the breaches of Articles 5(1)(e), 13, 17, 28 and 32 of the GDPR., 97. Secondly, with regard to the amount of the fine, the company considers that the amount of
the fine proposed by the rapporteur is disproportionate in view of its economic situation. It
highlights its poor financial situation and specifies that a high fine would have a significant
impact on its business and economic development, particularly in terms of job creation.
98. TheRestrictedCommitteenotesthatArticle83(3) oftheRegulationprovidesthatintheevent
of multiple breaches, as in the case in point, the total amount of the fine may not exceed the
amount set for the most serious breach. Insofar as the company is alleged to be in breach of
Articles 5(1)(e), 13, 17, 28 and 32 of the GDPR, the maximum fine that can be imposed is
20 million euros or 4% of annual worldwide turnover, whichever is higher.
99. The Restricted Committee also notes that administrative fines must be dissuasive but
proportionate. In particular, it considers that the company’s activity and financial situation
must be taken into account when determining the penalty and, in particular, in the case of an
administrative fine, its amount. In this regard, it notes that the company reports turnover in
2019 and 2020 of approximately23 million euros, then approximately30 million euros, with
a net loss of -932,078 euros and then -1.7 million euros, respectively.
100. In view of this information, the Restricted Committee considers that imposing a fine of
120,000 euros seems justified for the breaches of Articles 5(1)(e), 13, 17, 28 and 32 of the
GDPR.
101. Thirdly, an injunction to make the processing compliant with the provisions of Articles
5(1)(e), 13, 17, 28 and 32 of the GDPR was proposed by the rapporteur when the report was
notified.
102. The company argues that the actions it has taken in relation to all the breaches identified
should lead to no further action in respect of the Rapporteur’s proposed injunction.
103. The Restricted Committee considers that the company has taken the necessary measures to
ensure compliance. Consequently, the Restricted Committee considers that there are no
longer grounds to impose an injunction for these points.
FOR THESE REASONS
The CNIL’s Restricted Committee after having deliberated, intends to:
impose an administrative fine against for an amount of 120,000 (one
hundred and twenty thousand) euros in respect of the breaches of Articles 5(1)(e),
13, 17, 28 and 32 of Regulation (EU) 2016/679 of the European Parliament and of
the Council of 27 April 2016.,This decision may be appealed before the French Conseil d’Etat within two months of its
notification.
