ACT 78-17 of 6 January 1978

on Data Processing, Data Files and Individual Liberties (*)


The National Assembly and the Senate have adopted,
The President of the Republic promulgates the following Act;

Chapter I (Principles and Definitions)
Section 1
Section 2
Section 3
Section 4
Section 5
Chapter II (The National Data Processing and Liberties Commission)
Section 6
Section 7
Section 8
Section 9
Section 10
Section 11
Section 12
Section 13
Chapter III (Formalities Prior to Commencing Automatic Data Processing)
Section 14
Section 15
Section 16
Section 17
Section 18
Section 19
Section 20
Section 21
Section 22
Section 23
Section 24
Chapter IV (Collection, Recording and Storage of Personal Data)
Section 25
Section 26
Section 27
Section 28
Section 29
Section 30
Section 31
Section 32
Section 33
Chapter V (Exercise of Right of Access)
Section 34
Section 35
Section 36
Section 37
Section 38
Section 39
Section 40
Chapter VI (Penal Provisions)
Section 41
Section 42
Section 43
Section 44
Chapter VII (Miscellaneaous)
Section 45
Section 46
Section 47
Section 48

(*) Translation approved by the French Ministry of Justice

CHAPTER I

PRINCIPLES AND DEFINITIONS

SECTION 1.

Data processing shall be at the service of every citizen. It shall develop in the context of international co-operation. It shall infringe neither human identity, nor the rights of man, nor privacy, nor individual or public liberties.

SECTION 2.

No judicial decision involving an appraisal of human conduct may be based on any automatic processing of data which describes the profile or personality of the person concerned.

No governmental or private decision involving an appraisal of human conduct may be based solely on any automatic processing of data which describes the profile or personnality of the person concerned.

SECTION 3.

Any person shall be entitled to know and to dispute the data and logic used in automatic processing the results of which are asserted against him.

SECTION 4.

For the purposes of this Act personal data which permit, in any form, directly or indirectly, the identification of the natural persons to which they relate, irrespective of whether the processing is done by a natural or legal person.

SECTION 5.

For the purposes of the Act the automatic processing of personal data means any series of operations effected by automatic means, involving the collection, recording, preparation, modification, storage and destruction of personal data as well as any series of such operations relating to the use of files or data bases, including interconnections or comparisons, the consultation or communication of personal data.

CHAPTER II

THE NATIONAL DATA PROCESSING AND LIBERTIES COMMISSION

SECTION 6.

A National Processing and Liberties Commission shall be established. It shall ensure observance of the provisions of this Act, inter alia, by informing all persons concerned of their rights and duties, co-operating with them and monitoring the application of data processing to personal data. For this purpose the Commission shall have authority to make regulations in the cases referred to in this Act.

SECTION 7.

The appropriations required by the national Commission for its operations shall be included in the budget of the Ministry of Justice. The provisions of the Audit Act of 10 August 1922 shall not apply to the administration thereof. The Commission's accounts shall be audited by the Cour des Comptes.

However, charges may be made to cover the costs of certain formalities mentioned in Sections 15, 16, 17 and 24 of this Act.

SECTION 8.

The National Data Processing and Liberties Commission shall be an independant governmental authority.

It shall consist of 17 members designated for five years or the duration of their term in office:

- two deputies and two senators elected respectivly by the national Assembly and the Senate;
- two members of the Economic and Social Council, elected by it;
- two members or former members of the Conseil d'Etat, one ranking as "conseiller" or higher, elected by the general assembly of the Conseil d'Etat;
- two members or former members of the Cour de Cassation, one ranking as "conseiller" or higher, elected by the general assembly of the Cour de Cassation;
- two members or former members of the Cour des Comptes, one ranking as "conseiller-maitre" or higher, elected by the general assembly of the Cour des Comptes;
- two persons qualified by their knowledge of data processing applications, appointed by decree on proposals bt the speaker of the National Assembly and the speaker of the Senate respectivly;
- three persons appointed by decree made in the Council of Ministers on account of their authority and competence.

The Commission shall elect from its membership a Chairman and two Vice-Chairmen, for five years.

The Commission shall determine its own rules of procedure.

The Chairman shall have a casting vote.

If the Chairman or a member leaves the Commission before expiration of his term of office, his successor shall serve the Commission only for the unexpired part of such term.

The following may not be members of the Commission:

- a member of the government;
- anyone holding office or interest in a firm involved in the manufacture of equipment used in data processing or telecommunications, or in the provision of data processing or telecommunications services.

The Commission shall determine in each case such grounds for disqualifacation. Save for resignation, the term of office of a member may only be terminated by a finding by the Commission that he is disqualified under the rules which it has laid down.

SECTION 9.

A government representative appointed by the Prime Minister shall sit on the Commission.

He may within ten days after a matter has been discussed, call for a further meeting to reconsider it.

SECTION 10.

The Commission shall have staff under the control of the Chairman or, on delegation of authority, of a Vice-Chairman.

The Commission may delegate its powers under Sections 16, 17 and 21 (4), (5) and (6) to the Chairman or Vice-Chairman Delegate.

The employees of the National Commission are appointed by the Chairman or the Vice-Chairman Delegate.

SECTION 11.

The Commission may request the senior presiding judges of courts of appeal or the chief judges of administrative courts to assign a judge of their court, if necessary assisted by experts, to carry out investigations and inspections under its supervision.

SECTION 12.

The members and employees of the Commission shall be bound by a duty of secrecy regarding facts, documents or information with which tey may have become acquainted in the course of their duties, as provided by Article 75 of the Criminal Code and, subject to the requirements for preparation of the annual report referred to below, article 378 of the Criminal Code.

SECTION 13.

The members of the National Data Processing and Liberties Commission shall take no orders from any authority in the performance of their duties.

Computers specialists called on to provide information to the Commission or to testify before it shall be relieved insofar as need be from their duty of confidentiality.

CHAPTER III

FORMALITIES PRIOR TO COMMENCING AUTOMATIC DATA PROCESSING

SECTION 14.

The National Data Processing and Liberties Commission shall ensure that public or private automatic processing of personal data is carried out in accordance with this Act.

SECTION 15.

Aside from cases in which it must be authorized by law, the automatic processing of personal data on behalf of the State, a public establishment or territorial authorithy, or a private legal entity managing a public service, shall be authorized by a regulation adopted after obtaining the reasoned opinion of the National Data Processing and Liberties Commission

If the Commission's opinion is unfavorable, it may be disregarded only by a decree issued on the favorable opinion of the Conseil d'Etat or, in the case of a territorial authorithy, by a decision of its governing body approved by decree issued on the favorable opinion of the Conseil d'Etat.

If the Commission fails to notify its opinion within two months, which time may be extended for a like period once by the Chairman, such opinion shall be deemed to be favorable.

SECTION 16.

The automatic processing of a personal data on behalf of parties other than those who are subject to the provisions of Section 15 must, prior to commencement of operations, be declared to the national data Processing and Liberties Commission.

Such declaration shall entail an undertaking that the processing is in accordance with the law.

Upon receipt of the acknoledgement which the Commission shall issue forthwith, the applicant may proceed with processing. he shall be relieved of none of his liabilities or responsabilities.

SECTION 17.

For the most common types of public or private processing, which manifestly do not infringe privacy or liberties, the Commission shall set and publish simplified rules based on the characteristics set forth in Section 19.

For processing covered by such rules, only a simplified declaration of conformity to one of these rules shall be filed with the Commission. Unless otherwise decided by the Commission, the acknoledgement, the applicant may proceed with the processing. He shall relieved of none of his liabilities or responsabilities.

SECTION 18.

Use of the national identification index of natural persons with a view to processing of personal data may be authorized by order of the Conseil d'Etat after advice from the Commission.

SECTION 19.

The application for an opinion on the declaration must specify:

- the person making the application and the person empowered to decide on the processing or, if such a person resides abroad, his representative in France;
- the characteristics, purpose and, if applicable, name of the processing;
- the department or departments responsible for the processing;
- the department where right of access as defined in Chapter V below is to be exercised and the steps taken to facilitate exercise of that right;
- the categories of persons who, by reason of their duties or for the needs of the department, have direct access to the data recorded;
- the personal data processed, their source and the duration of storage, as well as the addressees or categories of addressees authorized to receive such data;
- the comparisons, interconnections or any other method of relating such data as well as their transfer to third parties;
- the steps taken to provide for security of the processing and the data and to safegards secrets protected by law;
- whether the processing is intended for the dispatch of personal data between France and another country, in any form, including the case where it involves operations carried out partly in France on the basis of operations previously performed outside France.

Any change in the particulars listed above or discontinuance of processing shall be reported to the Commission.

Some of the particulars listed above may be omitted from applications for opinions relating to the automatic processing of personal data affecting national security, defense or public safety.

SECTION 20.

The official decision authorizing processing under Section 15 above shall specify, inter alia:

- the name and purpose of the processing;
- the department where right of access as defined in Chapter V nelow is to exercised;
- the categories of personnal data recorded and the recipients or categories of recipients authorized to receive such data.

Decrees made in the Conseil d'Etat may provide that the regulations relating to certain processing affecting national security, defense and public safety shall not be published.

SECTION 21.

For discharge of its supervisory, the Commission:

1. shall issue individual rulings or general regulations in the cases provided for in this Act;
2. may, be special ruling, instruct one or more of its members or employees, assisted if need be by experts, to make on-the-spot checks in respect of any processing and to obtain all information and documents relevant for the purpose;
3. shall lay down standard rules for systems security as necessary; in exceptional circumstances it may prescribe security measures including the destruction of storage media;
4. shall issue warnings to those concerned and report violations to the public prosecutor, pursuant to Article 40 of the Code of Criminal Procedure;
5. shall ensure that the procedures for giving effect to the right of access and correction laid down in the regulations and declarations provided for in Sections 15 and 16 do not hinder the free exercise of such right;
6. shall receive claims, petitions and complaints;
7. shall keep itself informed of industrial and service activities which contribute to the use of data processing.

Ministers, public authorities, directors of public and private undertakings, heads of groups and associations and more generally holders or users of personal files may not oppose action by the Commission or its members for any reason, and instead shall take any step needed to facilitate its work.

SECTION 22.

The Commission shall make a list of processing activities available to the public, specifying in each case:

- the Act or official decision authorizing its establishment or the date of the declaration;
- the name and purpose thereof;
- the department regarding which the right of access provided under Chapter V below is to be exercised;
- the categories of personal data recorded and the addressees or categories of addressees authorized to receive such data.

Rulings, opinions or recommendations of the Commission of use in the application or interpretation of this Act shall be kept available for the public as provided by decree.

SECTION 23.

The Commission shall submit a yearly report to the President of the Republic and to parliament on the discharge of its duties. This report shall be published.

The report shall describe, inter alia, the procedures and working methods of the Commission and shall contain in an appendix any information about the organization of the Commission and its departments which may facilitate relations of the public with the Commission.

SECTION 24.

On the proposal of or as advised by the Commission, the transmission between France and another country in any form of personal data subjected to automatic processing covered by Section 16 above may call for prior authorization or be regulated by decree made in the Conseil d'Etat, to ensure compliance with the principles laid down in this Act.

CHAPTER IV

COLLECTION, RECORDING AND STORAGE OF PERSONAL DATA

SECTION 25.

Acquisition of data by any fraudulent, dishonest or illegal means is prohibited.

SECTION 26.

Any natural person is entitled to object, for due cause, to the processing of personal data concerning him.

This right shall not apply to processing limitately, designated in the regulation provided for in Section 15.

SECTION 27.

Persons from whom personal data are obtained must be informed:

- whether or not they must supply such data;
- of any consequences to them should they fail to do so;
- as to the natural or legal persons for whom the data are intended;
- as to right of access and correction.

When such data are obtained by questionnaires, these must mention the above requirements.

These provisions shall not apply to the collection of data requed for purposes of criminal investigation.

SECTION 28.

Unless otherwise provided by law, the data may not be stored in personal form beyond the period stated in the application for opinion or in the declaration, unless such storage is authorized by the Commission.

SECTION 29.

Any person processing personal data or ordering such processing thereby shall undertake, vis-a-vis the persons concerned to see that all necessary precautions are taken to protect the data and in particular to prevent these from being distorted, damaged or disdosed to unauthorized third part.

SECTION 30.

Unless otherwise provided by law, only the courts and public authorities acting within the scope of their legal powers and, on favorable opinion of the National Commission, legal persons managing a public service may engage in the automatic processing or personal data relating to criminal offenses, convictions or security measures.

Until implementation of the file of motor vehicle drivers provided by Act 70-539 of June 1970, insurance companies shall be authorized, under Commission supervision, to process themsleves the data mentioned in Section 5 of that Act relative to the persons covered by the last paragraph of such Section.

SECTION 31.

Without the party's express consent the recording or storage in a computer memory of personal data which directly or indirectly reflect racial origins or political, philosophical or religious opinions or union membership shall be prohibited.

Churches and religious, philosophical, political or union organizations may however keep records of their members or correspondents in computerized form. They are not subject to supervision in that connection.

On public policy grounds, other exceptions may be made to such prohibition on the Commission's proposal or favorable opinion, by decree made in the Conseil d'Etat.

SECTION 32.

Access to the voter list is given under identical conditions to candidates and political parties under the control of campaign commissions.

SECTION 33.

Sections 23, 30 and 31 shall not apply to personal data processed by press or broadcasting organizations under the laws governing them, if application of those sections would have the effect of restricting freedom of expression.

CHAPTER V

EXERCISE OF RIGHT OF ACCESS

SECTION 34.

Any person proving his identity shall be entitled to question the departments or organizations using automatic processing, a list of which shall be available to the public under Section 22 above, to determine whether such processing involves personal data concerning him, and if they do, to obtain access thereto.

SECTION 35.

The holder of such a right of access shall be entitled to obtain access to information concerning him. The information supplied to him shall be in clear language and shall conform to the contents of the records.

A copy shall be delivered to the holder of such a right of access on application against payment of a fixed charge varying according to the category of processing, the amount of which shall be fixed by Commission ruling and approved by Order of the Minister of Economy and Finance.

However, on application to the Commission with notice to the person requesting the data, the Commission may grant the person in charge of the file:

- time to respond;
- authorization to disregard certain requests which manifestly are unreasonably numerous, repetitious or systematic.

When there is reason to feat the concealment or disappearance of data mentioned in the first paragraph of this section, and even before commencement of legal proceedings, application may be made to the competent court to order ny appropriate measures for preventing such concealment or disappearance.

SECTION 36.

The holder of a right of access may require the correction, addition, clarification, updating or erasure of data concerning him which are inaccurate, incomplete, ambiguous, outdated or o which the acquisition, use, disclosure or storage is prohibited.

Upon request of the person concerned, the department or organization involved must issue a copy of the altered record without charge.

In the event of dispute, the onus of proof shall be on the department in relation to which the right of access is exercised, unless it appears that the disputed data were disclosed by or with the consent of the person concerned.

When the holder oa right of access has a record ??tered, the charge paid pursuant to Section 35 shall be refunded.

SECTION 37.

A personal file must be supplemented or corrected even ex proprio motu when the organization keeping it becomes aware of the inaccuracy or incompleteness of a personal item of data in such a file.

SECTION 38.

If an item of data has been sent to a third party, its correction or deletion must be notified to such party unless the Commission waives such a proceeding.

SECTION 39.

The regard to processing activities affecting national security, defense or public safety, the application shall be made to the Commission, which shall nominate one of its members who is or has been a member of the Conseil d'Etat, Cour de Cassation or Cour des Comptes, to conduct any appropriate investigations and order the necessary alterations. Such member may be assisted by a member of the Commission's staff.

The applicant shall be advised that checks have been made.

SECTION 40.

When exercise of a right of access applies to medical data, these may be disclosed to the person concerned only through a doctor designated by him for this purpose.

CHAPTER VI

PENAL PROVISIONS

SECTION 41.

Whoever engages in the automatic processing of personal data, or has such data so processed without publication of the official decisions provided for in Section 15 or without filing the declarations as provided in Section 16 shall be imprisoned for six months to three years, or fined 2,000 to 200,000 francs, or both.

The court may also order publication of the judgment in full or in part in one or more newspapers, and public display thereof as it may determine, at the guilty party's cost.

SECTION 42.

Whoever records or causes to be recorded, stores or causes to be stored personal data contrary to Sections 25, 26 and 28-31 shall be imprisoned for one to five years, fined 20,000 to 2,000,000 francs, or both.

The court may also order publication of the judgment in full or in part in one or more newspapers and public display thereof as it may determine, at the guilty party's cost.

SECTION 43.

Any person who, in connection with recording, filing, transmittal or any other form of processing, obtains personal data, disclosure of whichwould impair reputation or standing or invade privacy, and who knowingly and without the authorization of the person concerned discloses such data to any party not authorized to receive them under this or any other Act, shall be imprisoned for two to six months, fined 2,000 to 20,000 francs, or both

Whoever imprudently or negligently discloses or allows disclosures of data described in the preceding paragraph shall be fined 2,000 to 20,000 francs.

SECTION 44.

Whoever, being in possession of personal data in connection with recording, filing, transmittal or other processing, uses the same for a purpose other than that specified in the regulations as provided under Section 15, or in the declarations made pursuant to Section 16 and 17, or in a statutory provision, shall be imprisoned for one to five years, and fined 20,000 to 2,000,000 francs.

CHAPTER VII

MISCELLANEOUS

SECTION 45.

The provisions of Sections 25, 27, 29, 30, 31, 32 and 33 relative to the acquisition, recording and storage of personal data shall apply to non-automated or mechanized files other than those involving strict exercise of the right of privacy.

The first paragraph of Section 26 shall apply to same files, except public files designated by official decision.

Any person providing his identity shall be entitled to question departments or organizations keeping files mentioned in the first paragraph of this Section to determine whether such files contain personal data concerning him. The holder of a right of access shall be entitled to obtain access to such data; he may require compliance with the first three paragraphs of Section 36 of this Act relative to the right of correction. Section 37, 38, 39 and 40 shall also apply. A decree made in the Conseil d'Etat shall fix the conditions of exercise of the right of access and correction; such decree may provide for the collection of charges for issuing copies of the data disclosed.

On recommendation of the National Commission for Data Processing and Liberties, the Government may, by decree made in the Conseil d'Etat, decide that the other provisions of this Act may, in whole or in part, be applied to a file or categories of files which are non-automated or mechanized and which, by themselves or used in combination with a computerized file, threaten civil liberties.

SECTION 46.

Decrees made in the Conseil d'Etat shall specify arrangements for giving effect to this Act. They shall be enacted within six months of promulgation hereof.

Such decrees shall fix the time, when the provisions of this Act shall take effect. Such time shall not exceed two years after the promulgation of this Act.

SECTION 47.

This Act shall apply in Mayotte and the overseas territories.

SECTION 48.

As a transitional measure, processing covered by Section 15 above and already effective shall only be subject to a declaration to the National Commission for Data Processing and Liberties as provided in Sections 16 and 17.

The Commission may, however, by special ruling, apply Section 15 and fix the time within which the regulation covering processing must be adopted.

Two years after the promulgation of this Act, all processing covered by Section 15 shall comply with the requirements of such Section.

This Act shall be enforced as an Act of the State.

Paris, 6 January 1978.

Signed: VALERY GISCARD D'ESTAING
By the President of the Republic:


The Prime Minister,
RAYMOND BARRE

The Minister of Justice,
ALAIN PEYFEFITTE

The Minister of Interior,
CHRISTIAN BONNET

The Minister of Defense,
YVON BOURGES

The Deputy Minister of Economy and Finance,
ROBERT BOULIN

The Minister of Facilities and Territorial Development
FERNAND ICART

The Minister of Education,
RENE HABY

The Minister of Industry, Trade and Crafts
RENE MONORY

The Minister of Labor,
CHRISTIAN BEULLAC

The Minister of Health and Social Security,
SIMONE VEIL

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