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CNILTEXT000038848207_0
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CNILTEXT000038848207
| 0 |
DELIBERATION
|
VIGUEUR
|
Avis
|
Délibération 2019-097 du 11 juillet 2019
|
Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
|
2019-097
|
2019-07-11
|
(demande d’avis n° 19011835)
La Commission nationale de l'informatique et des libertés,
Saisie par le ministère des solidarités et de la santé d’une demande d’avis concernant un projet de loi relatif à la bioéthique ;
Vu la convention n° 108 du Conseil de l’Europe pour la protection des personnes à l’égard du traitement automatisé des données à caractère personnel ;
Vu le règlement (UE) 2016/679 du Parlement européen et du Conseil du 27 avril 2016 relatif à la protection des personnes physiques à l’égard du traitement des données à caractère personnel et à la libre circulation de ces données, et abrogeant la directive 95/46/CE (règlement général sur la protection des données) ;
Vu le code civil ;
Vu le code de la santé publique ;
Vu la loi n° 78-17 du 6 janvier 1978 modifiée relative à l’informatique, aux fichiers et aux libertés, notamment son article 8-I-4°-a) ;
Vu le décret n° 2019-536 du 29 mai 2019 pris pour l'application de la loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés ;
Après avoir entendu Mme Valérie PEUGEOT, commissaire, en son rapport, et Mme Nacima BELKACEM, commissaire du Gouvernement, en ses observations,
Emet l’avis suivant :
|
Délibération 2019-097 du 11 juillet 2019
(demande d’avis n° 19011835)
La Commission nationale de l'informatique et des libertés,
Saisie par le ministère des solidarités et de la santé d’une demande d’avis concernant un projet de loi relatif à la bioéthique ;
Vu la convention n° 108 du Conseil de l’Europe pour la protection des personnes à l’égard du traitement automatisé des données à caractère personnel ;
Vu le règlement (UE) 2016/679 du Parlement européen et du Conseil du 27 avril 2016 relatif à la protection des personnes physiques à l’égard du traitement des données à caractère personnel et à la libre circulation de ces données, et abrogeant la directive 95/46/CE (règlement général sur la protection des données) ;
Vu le code civil ;
Vu le code de la santé publique ;
Vu la loi n° 78-17 du 6 janvier 1978 modifiée relative à l’informatique, aux fichiers et aux libertés, notamment son article 8-I-4°-a) ;
Vu le décret n° 2019-536 du 29 mai 2019 pris pour l'application de la loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés ;
Après avoir entendu Mme Valérie PEUGEOT, commissaire, en son rapport, et Mme Nacima BELKACEM, commissaire du Gouvernement, en ses observations,
Emet l’avis suivant :
|
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CNILTEXT000038848207_1
|
CNILTEXT000038848207
| 1 |
DELIBERATION
|
VIGUEUR
|
Avis
|
Délibération 2019-097 du 11 juillet 2019
|
Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
|
2019-097
|
2019-07-11
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Après avoir entendu Mme Valérie PEUGEOT, commissaire, en son rapport, et Mme Nacima BELKACEM, commissaire du Gouvernement, en ses observations,
Emet l’avis suivant :
La Commission a été saisie le 14 juin 2019 par le ministère des solidarités et de la santé, en application de l’article 8-I-4°-a) de la loi n° 78-17 du 6 janvier 1978 modifiée, d’une demande d’avis portant sur quatre mesures du projet de loi relatif à la bioéthique (ci-après le projet ) entrant dans le champ des missions exercées par la Commission. L’urgence a été invoquée par le gouvernement, conformément aux dispositions de l’article 9-I du décret n° 2019-536 du 29 mai 2019 pris pour l'application de la loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés.
Le projet de loi relatif à la bioéthique a été précédé de l’avis 129 portant contribution du Comité consultatif national d’éthique à la révision de la loi de bioéthique du 18 septembre 2018. Une étude, sous la forme d’un rapport intitulé Révision de la loi de bioéthique : quelles options pour demain ? a également été menée, à la demande du Premier ministre, par le Conseil d’Etat ; elle a été adoptée en assemblée générale le 28 juin 2018.
Les quatre mesures du projet de loi, soumises à l’examen de la Commission, visent à :
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Délibération 2019-097 du 11 juillet 2019
Après avoir entendu Mme Valérie PEUGEOT, commissaire, en son rapport, et Mme Nacima BELKACEM, commissaire du Gouvernement, en ses observations,
Emet l’avis suivant :
La Commission a été saisie le 14 juin 2019 par le ministère des solidarités et de la santé, en application de l’article 8-I-4°-a) de la loi n° 78-17 du 6 janvier 1978 modifiée, d’une demande d’avis portant sur quatre mesures du projet de loi relatif à la bioéthique (ci-après le projet ) entrant dans le champ des missions exercées par la Commission. L’urgence a été invoquée par le gouvernement, conformément aux dispositions de l’article 9-I du décret n° 2019-536 du 29 mai 2019 pris pour l'application de la loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés.
Le projet de loi relatif à la bioéthique a été précédé de l’avis 129 portant contribution du Comité consultatif national d’éthique à la révision de la loi de bioéthique du 18 septembre 2018. Une étude, sous la forme d’un rapport intitulé Révision de la loi de bioéthique : quelles options pour demain ? a également été menée, à la demande du Premier ministre, par le Conseil d’Etat ; elle a été adoptée en assemblée générale le 28 juin 2018.
Les quatre mesures du projet de loi, soumises à l’examen de la Commission, visent à :
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CNILTEXT000038848207_2
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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Les quatre mesures du projet de loi, soumises à l’examen de la Commission, visent à :
déterminer le cadre à appliquer aux traitements de données à caractère personnel constitués par l’Agence de la biomédecine et la Commission d’accès aux données non identifiantes et à l’identité du tiers donneur aux fins de permettre l’exercice du droit d’accès aux origines de l’enfant conçu à partir d’un don de gamètes ou d’embryons (articles 3 et 3 bis du projet) ;
sécuriser la bonne information du patient lorsqu’un traitement algorithmique de données massives est utilisé à l’occasion d’un acte de soins (article 11 du projet) ;
modifier les dispositions de la loi informatique et libertés concernant les modalités d’examen des caractéristiques génétiques à des fins de recherche scientifique (article 18 du projet) ;
notamment organiser de manière sécurisée la transmission des résultats d’analyses génétiques au laboratoire autorisé par l’Agence régionale de santé directement au prescripteur (article 25 du projet).
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Délibération 2019-097 du 11 juillet 2019
Les quatre mesures du projet de loi, soumises à l’examen de la Commission, visent à :
déterminer le cadre à appliquer aux traitements de données à caractère personnel constitués par l’Agence de la biomédecine et la Commission d’accès aux données non identifiantes et à l’identité du tiers donneur aux fins de permettre l’exercice du droit d’accès aux origines de l’enfant conçu à partir d’un don de gamètes ou d’embryons (articles 3 et 3 bis du projet) ;
sécuriser la bonne information du patient lorsqu’un traitement algorithmique de données massives est utilisé à l’occasion d’un acte de soins (article 11 du projet) ;
modifier les dispositions de la loi informatique et libertés concernant les modalités d’examen des caractéristiques génétiques à des fins de recherche scientifique (article 18 du projet) ;
notamment organiser de manière sécurisée la transmission des résultats d’analyses génétiques au laboratoire autorisé par l’Agence régionale de santé directement au prescripteur (article 25 du projet).
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CNILTEXT000038848207_3
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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À titre liminaire, la Commission souhaite indiquer que, sans remettre en cause la légitimité des nouvelles mesures introduites par le projet de loi, des garanties suffisantes au regard du respect des principes fondamentaux du droit à la protection des données à caractère personnel doivent être mises en œuvre. Elle estime que des mesures juridiques et techniques adaptées devront être prévues afin d’assurer un haut niveau de protection des données. Elle formule, dans ce contexte, les observations suivantes :
Sur l’assistance médicale à la procréation (art. 3 et 3 bis du projet de loi) :
Concernant la transmission de données de santé à caractère personnel des enfants conçus au bénéfice des donneurs de gamètes :
Les articles 3 et 3 bis du projet de loi ouvrent la possibilité, pour un médecin, d’accéder aux informations médicales non identifiantes , en cas de nécessité médicale, au bénéfice d’un donneur de gamètes. Le gouvernement a précisé que ce dispositif a pour objectif de permettre à un médecin, qui assure la prise en charge sanitaire d’un donneur de gamètes, de contacter un médecin du Centre d’étude et de conservation des œufs et du sperme (CECOS) pour obtenir des informations de nature médicale relatives aux enfants nés de dons qui seraient utiles au suivi sanitaire du donneur, à l’exclusion des informations susceptibles d’identifier le(s) enfant(s) conçu(s).
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Délibération 2019-097 du 11 juillet 2019
À titre liminaire, la Commission souhaite indiquer que, sans remettre en cause la légitimité des nouvelles mesures introduites par le projet de loi, des garanties suffisantes au regard du respect des principes fondamentaux du droit à la protection des données à caractère personnel doivent être mises en œuvre. Elle estime que des mesures juridiques et techniques adaptées devront être prévues afin d’assurer un haut niveau de protection des données. Elle formule, dans ce contexte, les observations suivantes :
Sur l’assistance médicale à la procréation (art. 3 et 3 bis du projet de loi) :
Concernant la transmission de données de santé à caractère personnel des enfants conçus au bénéfice des donneurs de gamètes :
Les articles 3 et 3 bis du projet de loi ouvrent la possibilité, pour un médecin, d’accéder aux informations médicales non identifiantes , en cas de nécessité médicale, au bénéfice d’un donneur de gamètes. Le gouvernement a précisé que ce dispositif a pour objectif de permettre à un médecin, qui assure la prise en charge sanitaire d’un donneur de gamètes, de contacter un médecin du Centre d’étude et de conservation des œufs et du sperme (CECOS) pour obtenir des informations de nature médicale relatives aux enfants nés de dons qui seraient utiles au suivi sanitaire du donneur, à l’exclusion des informations susceptibles d’identifier le(s) enfant(s) conçu(s).
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CNILTEXT000038848207_4
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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En premier lieu, la Commission indique que les informations médicales non identifiantes contenues dans les dossiers des CECOS constituent des données de santé à caractère personnel conformément aux dispositions de l’article 4-15) du RGPD. Elle relève qu’un médecin qui demande, au titre du suivi sanitaire d’un donneur, la transmission des données de santé d’un enfant conçu à partir d’un don n’intervient pas, en vertu de l’article L. 1110-4 du code de la santé publique (CSP), en qualité de membre de l’équipe de soins de l’enfant conçu. Elle observe également, toujours par application de l’article L. 1110-4 précité, que les conditions d’échange et de partage des données de santé sont strictement définies et que lesdites données sont protégées par le secret médical, excepté dans les cas de dérogation expressément prévus par la loi. Elle ajoute que seule une mesure législative est de nature à rendre inapplicables les dispositions du code pénal relatives aux sanctions attachées à la divulgation d’une information protégée par le secret médical. Sur cette base, elle relève que le projet de loi relatif à la bioéthique donne une base légale suffisante à la transmission des données de santé à caractère personnel de l’enfant conçu au médecin du tiers donneur.
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Délibération 2019-097 du 11 juillet 2019
En premier lieu, la Commission indique que les informations médicales non identifiantes contenues dans les dossiers des CECOS constituent des données de santé à caractère personnel conformément aux dispositions de l’article 4-15) du RGPD. Elle relève qu’un médecin qui demande, au titre du suivi sanitaire d’un donneur, la transmission des données de santé d’un enfant conçu à partir d’un don n’intervient pas, en vertu de l’article L. 1110-4 du code de la santé publique (CSP), en qualité de membre de l’équipe de soins de l’enfant conçu. Elle observe également, toujours par application de l’article L. 1110-4 précité, que les conditions d’échange et de partage des données de santé sont strictement définies et que lesdites données sont protégées par le secret médical, excepté dans les cas de dérogation expressément prévus par la loi. Elle ajoute que seule une mesure législative est de nature à rendre inapplicables les dispositions du code pénal relatives aux sanctions attachées à la divulgation d’une information protégée par le secret médical. Sur cette base, elle relève que le projet de loi relatif à la bioéthique donne une base légale suffisante à la transmission des données de santé à caractère personnel de l’enfant conçu au médecin du tiers donneur.
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CNILTEXT000038629823_31
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CNILTEXT000038629823
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-006 du 13 juin 2019
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Délibération de la formation restreinte n° SAN-2019-006 du 13 juin 2019 prononçant une sanction à l’encontre de la société X
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SAN-2019-006
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2019-06-13
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65. L’article 83 du RGPD prévoit :
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Délibération SAN-2019-006 du 13 juin 2019
65. L’article 83 du RGPD prévoit :
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CNILTEXT000038848207_5
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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En deuxième lieu, s’agissant de la notion de données non identifiantes , la Commission invite à se reporter aux développements ci-dessous concernant la nature des données collectées. Elle attire en conséquence l’attention du gouvernement sur les risques possibles de ré-identification de l’enfant né du don qui résulteraient de la transmission desdites données.
En troisième lieu, elle s’interroge sur les modalités pratiques de mise en œuvre de ces dispositions, notamment s’agissant de la manière dont les données seront communiquées au donneur depuis les bases des CECOS, ainsi que sur le fait de savoir si les enfants ou les titulaires de l’autorité parentale seront informés de l’accès effectif à des données concernant les enfants par le donneur, accès pouvant à tout le moins générer des interrogations sur l’état de santé de l’enfant. Par ailleurs, la Commission s’interroge sur la nature et les modalités de collecte des données s’agissant du suivi de l’état de santé des enfants issus de dons par les CECOS.
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Délibération 2019-097 du 11 juillet 2019
En deuxième lieu, s’agissant de la notion de données non identifiantes , la Commission invite à se reporter aux développements ci-dessous concernant la nature des données collectées. Elle attire en conséquence l’attention du gouvernement sur les risques possibles de ré-identification de l’enfant né du don qui résulteraient de la transmission desdites données.
En troisième lieu, elle s’interroge sur les modalités pratiques de mise en œuvre de ces dispositions, notamment s’agissant de la manière dont les données seront communiquées au donneur depuis les bases des CECOS, ainsi que sur le fait de savoir si les enfants ou les titulaires de l’autorité parentale seront informés de l’accès effectif à des données concernant les enfants par le donneur, accès pouvant à tout le moins générer des interrogations sur l’état de santé de l’enfant. Par ailleurs, la Commission s’interroge sur la nature et les modalités de collecte des données s’agissant du suivi de l’état de santé des enfants issus de dons par les CECOS.
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CNILTEXT000038848207_6
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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La Commission prend enfin acte que les articles 3 et 3 bis du projet suppriment le renvoi aux dispositions de la loi informatique et libertés , auquel il est aujourd’hui procédé, en ce qui concerne les formalités à réaliser et les pouvoirs de la Commission sur les traitements constitués. Dès lors que cette suppression n’emporte pas de conséquence sur l’obligation pour les responsables de traitement de respecter les dispositions du RGPD et de la loi informatique et libertés , celle-ci n’appelle pas d’observation particulière de la part de la Commission.
Concernant les traitements de données à caractère personnel constitués aux fins d’exercice du droit d’accès aux origines des enfants issus d’un don
Le projet de loi relatif à la bioéthique entend instituer le droit, pour l’enfant conçu par assistance médicale à la procréation avec tiers donneur, d’accéder à sa majorité à ses origines dès lors qu’il en fait la demande. A cette fin, il octroie à l’Agence de la biomédecine une compétence nouvelle : celle de mettre en œuvre un traitement de données à caractère personnel collectant les données nécessaires à l’exercice de ce droit. Il crée en outre une commission ad hoc, placée auprès du ministre chargé de la santé, responsable de la gestion des demandes d’accès aux données non identifiantes et à l’identité du donneur.
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Délibération 2019-097 du 11 juillet 2019
La Commission prend enfin acte que les articles 3 et 3 bis du projet suppriment le renvoi aux dispositions de la loi informatique et libertés , auquel il est aujourd’hui procédé, en ce qui concerne les formalités à réaliser et les pouvoirs de la Commission sur les traitements constitués. Dès lors que cette suppression n’emporte pas de conséquence sur l’obligation pour les responsables de traitement de respecter les dispositions du RGPD et de la loi informatique et libertés , celle-ci n’appelle pas d’observation particulière de la part de la Commission.
Concernant les traitements de données à caractère personnel constitués aux fins d’exercice du droit d’accès aux origines des enfants issus d’un don
Le projet de loi relatif à la bioéthique entend instituer le droit, pour l’enfant conçu par assistance médicale à la procréation avec tiers donneur, d’accéder à sa majorité à ses origines dès lors qu’il en fait la demande. A cette fin, il octroie à l’Agence de la biomédecine une compétence nouvelle : celle de mettre en œuvre un traitement de données à caractère personnel collectant les données nécessaires à l’exercice de ce droit. Il crée en outre une commission ad hoc, placée auprès du ministre chargé de la santé, responsable de la gestion des demandes d’accès aux données non identifiantes et à l’identité du donneur.
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CNILTEXT000038848207_7
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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A titre liminaire, la Commission souhaite préciser que le droit pour un enfant d’accéder à ses origines et de se voir, en conséquence, communiquer des données à caractère personnel relatives au tiers donneur doit être distingué du droit d’accès de la personne concernée à des données le concernant tel que prévu par les dispositions de l’article 15 du RGPD.
Sur les modalités retenues pour le traitement des données à caractère personnel transmises par les CECOS à l’Agence de la biomédecine, ainsi que les traitements constitués par cette agence et la commission d’accès aux données non identifiantes et à l’identité du donneur aux fins de permettre l’accès des enfants conçus à leurs origines, le projet de loi propose deux orientations distinctes correspondant à des scenarii présentés respectivement aux articles 3 et 3 bis :
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Délibération 2019-097 du 11 juillet 2019
A titre liminaire, la Commission souhaite préciser que le droit pour un enfant d’accéder à ses origines et de se voir, en conséquence, communiquer des données à caractère personnel relatives au tiers donneur doit être distingué du droit d’accès de la personne concernée à des données le concernant tel que prévu par les dispositions de l’article 15 du RGPD.
Sur les modalités retenues pour le traitement des données à caractère personnel transmises par les CECOS à l’Agence de la biomédecine, ainsi que les traitements constitués par cette agence et la commission d’accès aux données non identifiantes et à l’identité du donneur aux fins de permettre l’accès des enfants conçus à leurs origines, le projet de loi propose deux orientations distinctes correspondant à des scenarii présentés respectivement aux articles 3 et 3 bis :
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CNILTEXT000038848207_8
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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L’article 3 du projet de loi énonce que l’accès à des données non identifiantes relatives à un tiers donneur (âge, état de santé au moment du don, caractéristiques physiques, situation familiale ou professionnelle, pays de naissance, motivations au don) et, si l’enfant le souhaite, à l’identité de ce tiers exige : le consentement exprès du tiers donneur à la communication de ces données et de son identité (…) recueilli au moment de son don . Le gouvernement a précisé que le consentement du tiers donneur au don emporte son consentement à la transmission de ses données non identifiantes et de son identité à la personne majeure conçue par assistance médicale à la procréation qui les demanderait à partir de sa majorité. La personne majeure peut soit demander uniquement l’accès aux données non identifiantes, soit l’accès à l’identité, soit les deux . Si cette option rédactionnelle devait être maintenue, la Commission demande que le fait, pour le donneur, de consentir à effectuer un don emporte consentement à donner accès à son identité soit clairement précisé dans le projet.
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Délibération 2019-097 du 11 juillet 2019
L’article 3 du projet de loi énonce que l’accès à des données non identifiantes relatives à un tiers donneur (âge, état de santé au moment du don, caractéristiques physiques, situation familiale ou professionnelle, pays de naissance, motivations au don) et, si l’enfant le souhaite, à l’identité de ce tiers exige : le consentement exprès du tiers donneur à la communication de ces données et de son identité (…) recueilli au moment de son don . Le gouvernement a précisé que le consentement du tiers donneur au don emporte son consentement à la transmission de ses données non identifiantes et de son identité à la personne majeure conçue par assistance médicale à la procréation qui les demanderait à partir de sa majorité. La personne majeure peut soit demander uniquement l’accès aux données non identifiantes, soit l’accès à l’identité, soit les deux . Si cette option rédactionnelle devait être maintenue, la Commission demande que le fait, pour le donneur, de consentir à effectuer un don emporte consentement à donner accès à son identité soit clairement précisé dans le projet.
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CNILTEXT000038848207_9
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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L’article 3 bis du projet de loi prévoit que l’accès aux données non identifiantes du donneur, à l’exception de celles qui permettraient manifestement son identification , est systématique dès lors que l’enfant, devenu majeur, en fait la demande. Le tiers donneur pourrait alors s’opposer au recueil des informations non identifiantes portant uniquement sur sa situation familiale et professionnelle, sur son pays de naissance et sur sa motivation concernant le don. L’enfant pourrait également (…) accéder à l’identité du tiers donneur, sous réserve du consentement exprès, au moment de la demande (…). Le gouvernement a par ailleurs précisé que le consentement au don emporte le consentement du tiers donneur à la transmission de ces données non identifiantes . La Commission relève que le choix de cette option rédactionnelle est susceptible de créer une différence de traitement entre les enfants pour lesquels le donneur a consenti à l’accès aux données identifiantes le concernant et les enfants pour lesquels le donneur n’aura pas donné son consentement.
La Commission indique que, bien qu’elle ne se prononce que sur les scenarii présentés dans le projet de loi dont elle est saisie, d’autres options plus protectrices des droits des personnes concernées auraient pu être envisagées, notamment en limitant la transmission des données concernant les donneurs à l’Agence de la biomédecine aux cas dans lesquels ils auraient consenti à ce que les enfants conçus y aient accès.
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Délibération 2019-097 du 11 juillet 2019
L’article 3 bis du projet de loi prévoit que l’accès aux données non identifiantes du donneur, à l’exception de celles qui permettraient manifestement son identification , est systématique dès lors que l’enfant, devenu majeur, en fait la demande. Le tiers donneur pourrait alors s’opposer au recueil des informations non identifiantes portant uniquement sur sa situation familiale et professionnelle, sur son pays de naissance et sur sa motivation concernant le don. L’enfant pourrait également (…) accéder à l’identité du tiers donneur, sous réserve du consentement exprès, au moment de la demande (…). Le gouvernement a par ailleurs précisé que le consentement au don emporte le consentement du tiers donneur à la transmission de ces données non identifiantes . La Commission relève que le choix de cette option rédactionnelle est susceptible de créer une différence de traitement entre les enfants pour lesquels le donneur a consenti à l’accès aux données identifiantes le concernant et les enfants pour lesquels le donneur n’aura pas donné son consentement.
La Commission indique que, bien qu’elle ne se prononce que sur les scenarii présentés dans le projet de loi dont elle est saisie, d’autres options plus protectrices des droits des personnes concernées auraient pu être envisagées, notamment en limitant la transmission des données concernant les donneurs à l’Agence de la biomédecine aux cas dans lesquels ils auraient consenti à ce que les enfants conçus y aient accès.
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CNILTEXT000038848207_10
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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S’agissant des traitements de données dont la mise en œuvre est envisagée, la Commission note que trois catégories de traitements de données à caractère personnel interviennent dans le dispositif d’accès aux origines prévu par le projet :
les traitements mis en œuvre par chacun des CECOS, dont la finalité principale est la gestion des dons de gamètes et d’embryons dans le cadre de l’assistance médicale à la procréation. La transmission des données relatives aux donneurs et aux enfants conçus à l’Agence de la biomédecine constitue une finalité nouvelle et accessoire à ces traitements ;
le traitement mis en œuvre par l’Agence de la biomédecine, dont la finalité est la collecte et la conservation des données nécessaires à l’accès aux origines des enfants conçus ;
le traitement mis en œuvre par la Commission d’accès aux données non identifiantes et à l’identité du tiers donneur, dont la finalité est la gestion des demandes d’accès aux origines.
Concernant la base légale à retenir pour les traitements de données à caractère personnel constitués et les formalités à accomplir :
Se fondant sur les précisions apportées par le gouvernement, la Commission prend acte que les articles 3 et 3 bis du projet de loi relatif à la bioéthique imposent la transmission des données des tiers donneurs par les CECOS à l’Agence de la biomédecine et à la commission d’accès aux données non identifiantes et à l’identité du donneur.
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Délibération 2019-097 du 11 juillet 2019
S’agissant des traitements de données dont la mise en œuvre est envisagée, la Commission note que trois catégories de traitements de données à caractère personnel interviennent dans le dispositif d’accès aux origines prévu par le projet :
les traitements mis en œuvre par chacun des CECOS, dont la finalité principale est la gestion des dons de gamètes et d’embryons dans le cadre de l’assistance médicale à la procréation. La transmission des données relatives aux donneurs et aux enfants conçus à l’Agence de la biomédecine constitue une finalité nouvelle et accessoire à ces traitements ;
le traitement mis en œuvre par l’Agence de la biomédecine, dont la finalité est la collecte et la conservation des données nécessaires à l’accès aux origines des enfants conçus ;
le traitement mis en œuvre par la Commission d’accès aux données non identifiantes et à l’identité du tiers donneur, dont la finalité est la gestion des demandes d’accès aux origines.
Concernant la base légale à retenir pour les traitements de données à caractère personnel constitués et les formalités à accomplir :
Se fondant sur les précisions apportées par le gouvernement, la Commission prend acte que les articles 3 et 3 bis du projet de loi relatif à la bioéthique imposent la transmission des données des tiers donneurs par les CECOS à l’Agence de la biomédecine et à la commission d’accès aux données non identifiantes et à l’identité du donneur.
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CNILTEXT000038848207_11
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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La Commission considère que les traitements constitués sont, suivant la rédaction actuelle du projet, par application des dispositions de l’article 6-1-c) du RGPD, nécessaires au respect d’une obligation légale, dans la mesure où les données seront transmises à l’Agence de la biomédecine dans tous les cas. Ce constat a pour conséquence pratique qu’un donneur qui refuserait que ses données soient transmises à l’Agence de la biomédecine, notamment car il ne souhaite pas que des données le concernant soient transmises à un enfant conçu, ne pourrait pas effectuer de don. Ainsi, la Commission attire l’attention du gouvernement sur l’interprétation qui pourrait être faite des articles 3 et 3 bis du projet et qui pourrait être différente de celle qui en est faite par le gouvernement, dans la mesure où il n’est pas expressément indiqué que le refus de transmettre des informations non identifiantes et identifiantes empêcherait la réalisation d’un don. La Commission demande donc que le projet de loi soit clarifié sur ce point.
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Délibération 2019-097 du 11 juillet 2019
La Commission considère que les traitements constitués sont, suivant la rédaction actuelle du projet, par application des dispositions de l’article 6-1-c) du RGPD, nécessaires au respect d’une obligation légale, dans la mesure où les données seront transmises à l’Agence de la biomédecine dans tous les cas. Ce constat a pour conséquence pratique qu’un donneur qui refuserait que ses données soient transmises à l’Agence de la biomédecine, notamment car il ne souhaite pas que des données le concernant soient transmises à un enfant conçu, ne pourrait pas effectuer de don. Ainsi, la Commission attire l’attention du gouvernement sur l’interprétation qui pourrait être faite des articles 3 et 3 bis du projet et qui pourrait être différente de celle qui en est faite par le gouvernement, dans la mesure où il n’est pas expressément indiqué que le refus de transmettre des informations non identifiantes et identifiantes empêcherait la réalisation d’un don. La Commission demande donc que le projet de loi soit clarifié sur ce point.
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CNILTEXT000038848207_12
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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La Commission indique par ailleurs que les traitements constitués sont des traitements de données de santé à caractère personnel entrant dans le champ des dispositions spécifiques de la loi informatique et libertés . Elle rappelle à ce titre qu’ils devront faire l’objet de formalités préalables auprès d’elle. La Commission souligne qu’il conviendra de déterminer si ces traitements devront faire l’objet d’une autorisation conformément aux dispositions de l’article 66 III de la loi informatique et libertés , ou d’un décret en Conseil d’Etat pris après avis motivé et publié de la Commission conformément aux dispositions combinées des articles 6-III et 31-II de la loi. Le traitement mis en œuvre par la commission d’accès aux données devra également faire l’objet de formalités préalables.
Concernant la nature des données collectées :
Les articles 3 et 3 bis du projet prévoient que les enfants conçus par assistance médicale à la procréation avec tiers donneur peuvent accéder à des données non identifiantes relatives à ce tiers (âge, état de santé au moment du don, caractéristiques physiques, situation familiale ou professionnelle, pays de naissance, motivations du don).
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Délibération 2019-097 du 11 juillet 2019
La Commission indique par ailleurs que les traitements constitués sont des traitements de données de santé à caractère personnel entrant dans le champ des dispositions spécifiques de la loi informatique et libertés . Elle rappelle à ce titre qu’ils devront faire l’objet de formalités préalables auprès d’elle. La Commission souligne qu’il conviendra de déterminer si ces traitements devront faire l’objet d’une autorisation conformément aux dispositions de l’article 66 III de la loi informatique et libertés , ou d’un décret en Conseil d’Etat pris après avis motivé et publié de la Commission conformément aux dispositions combinées des articles 6-III et 31-II de la loi. Le traitement mis en œuvre par la commission d’accès aux données devra également faire l’objet de formalités préalables.
Concernant la nature des données collectées :
Les articles 3 et 3 bis du projet prévoient que les enfants conçus par assistance médicale à la procréation avec tiers donneur peuvent accéder à des données non identifiantes relatives à ce tiers (âge, état de santé au moment du don, caractéristiques physiques, situation familiale ou professionnelle, pays de naissance, motivations du don).
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CNILTEXT000038848207_13
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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En premier lieu, en ce qui concerne la nature exacte des données non identifiantes , la Commission rappelle que l’âge, l’état de santé des donneurs au moment du don, les caractéristiques physiques, la situation familiale ou professionnelle, le pays de naissance, les motivations au don des tiers donneurs constituent, au sens du RGPD et des lignes directrices du groupe de travail article 29 sur la protection des données (G29), des données à caractère personnel qui se rapportent à des personnes physiques identifiables. A ce titre, elle précise que le G29, dans son avis 05/2014 du 10 avril 2014 sur les techniques d’anonymisation (dénommé ci-après lignes directrices du G29 ), retient qu’un traitement de données est a priori anonyme dès lors qu’il n’est possible ni d’individualiser, ni de corréler, ni d’interférer les données.
La Commission observe en l’espèce qu’il existe, à partir de ces données, des risques possibles de ré-identification des tiers donneurs. Elle attire donc l’attention du gouvernement sur le risque d’interprétation erronée qui pourrait résulter de l’utilisation de ces termes s’il devait s’avérer que les données non identifiantes permettent une ré-identification des personnes concernées. Elle propose donc de retenir une formulation précisant que les données sont susceptibles d’être indirectement identifiantes et que les donneurs en soient clairement informés.
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Délibération 2019-097 du 11 juillet 2019
En premier lieu, en ce qui concerne la nature exacte des données non identifiantes , la Commission rappelle que l’âge, l’état de santé des donneurs au moment du don, les caractéristiques physiques, la situation familiale ou professionnelle, le pays de naissance, les motivations au don des tiers donneurs constituent, au sens du RGPD et des lignes directrices du groupe de travail article 29 sur la protection des données (G29), des données à caractère personnel qui se rapportent à des personnes physiques identifiables. A ce titre, elle précise que le G29, dans son avis 05/2014 du 10 avril 2014 sur les techniques d’anonymisation (dénommé ci-après lignes directrices du G29 ), retient qu’un traitement de données est a priori anonyme dès lors qu’il n’est possible ni d’individualiser, ni de corréler, ni d’interférer les données.
La Commission observe en l’espèce qu’il existe, à partir de ces données, des risques possibles de ré-identification des tiers donneurs. Elle attire donc l’attention du gouvernement sur le risque d’interprétation erronée qui pourrait résulter de l’utilisation de ces termes s’il devait s’avérer que les données non identifiantes permettent une ré-identification des personnes concernées. Elle propose donc de retenir une formulation précisant que les données sont susceptibles d’être indirectement identifiantes et que les donneurs en soient clairement informés.
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CNILTEXT000038848207_14
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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Par ailleurs, la Commission attire l’attention du gouvernement sur le sens à donner à la notion d’anonymat du don, telle que prévue par les dispositions de l’article L1211-5 du CSP. La Commission estime que ce principe, qui interdisait jusqu’à présent aux enfants d’accéder à l’identité et aux données indirectement identifiantes du donneur, est en l’état du projet de loi remis en cause, dans la mesure où la transmission de données à caractère personnel aux enfants conçus s’imposerait à tout donneur. Aussi, elle s’interroge sur l’opportunité de maintenir la référence à ce principe dans les articles 3 et 3 bis du projet de loi et suggère au gouvernement d’apporter les éclaircissements nécessaires sur l’articulation entre le principe d’anonymat du don et le droit d’accès aux origines.
En deuxième lieu, en ce qui concerne l’étendue de la collecte des données indirectement identifiantes, la Commission rappelle qu’en vertu du principe de minimisation des données prévu à l’article 5-1-c) du RGPD, les données à caractère personnel doivent être adéquates, pertinentes et limitées à ce qui est nécessaire au regard des finalités pour lesquelles elles sont traitées.
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Délibération 2019-097 du 11 juillet 2019
Par ailleurs, la Commission attire l’attention du gouvernement sur le sens à donner à la notion d’anonymat du don, telle que prévue par les dispositions de l’article L1211-5 du CSP. La Commission estime que ce principe, qui interdisait jusqu’à présent aux enfants d’accéder à l’identité et aux données indirectement identifiantes du donneur, est en l’état du projet de loi remis en cause, dans la mesure où la transmission de données à caractère personnel aux enfants conçus s’imposerait à tout donneur. Aussi, elle s’interroge sur l’opportunité de maintenir la référence à ce principe dans les articles 3 et 3 bis du projet de loi et suggère au gouvernement d’apporter les éclaircissements nécessaires sur l’articulation entre le principe d’anonymat du don et le droit d’accès aux origines.
En deuxième lieu, en ce qui concerne l’étendue de la collecte des données indirectement identifiantes, la Commission rappelle qu’en vertu du principe de minimisation des données prévu à l’article 5-1-c) du RGPD, les données à caractère personnel doivent être adéquates, pertinentes et limitées à ce qui est nécessaire au regard des finalités pour lesquelles elles sont traitées.
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CNILTEXT000038848207_15
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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La Commission prend note que le projet de loi dresse une liste limitative de données indirectement identifiantes, transmises par les CECOS à l’Agence de la biomédecine aux fins d’exercice du droit d’accès aux origines. Elle relève que seul l’article 3 bis prévoit pour le tiers donneur la faculté de s’opposer au recueil des données suivantes : sa situation familiale et professionnelle, son pays de naissance, les motivations de son don.
Au vu de ces éléments, sans remettre en cause la légitimité de l’accès aux origines, la Commission s’interroge sur les conséquences que pourrait avoir la découverte, pour un enfant, de certaines informations concernant le donneur (telles qu’une pathologie grave découverte ultérieurement par exemple), et par là-même sur la pertinence, l’adéquation et le caractère potentiellement excessif de la transmission et de la collecte de certaines données indirectement identifiantes, notamment des données de santé, au regard de la finalité précise d’accéder à ses origines personnelles. A ce titre, en application du principe de minimisation des données prévu par l’article 5-1-c du RGPD, la Commission invite le gouvernement à préciser, dans le cadre du décret d’application susmentionné, la nature exacte des données traitées et transmises à l’Agence de la biomédecine.
Sur la durée de conservation des données
Le projet prévoit une durée minimum de conservation des données de quatre-vingts ans, durée qui sera fixée par décret en Conseil d’Etat.
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Délibération 2019-097 du 11 juillet 2019
La Commission prend note que le projet de loi dresse une liste limitative de données indirectement identifiantes, transmises par les CECOS à l’Agence de la biomédecine aux fins d’exercice du droit d’accès aux origines. Elle relève que seul l’article 3 bis prévoit pour le tiers donneur la faculté de s’opposer au recueil des données suivantes : sa situation familiale et professionnelle, son pays de naissance, les motivations de son don.
Au vu de ces éléments, sans remettre en cause la légitimité de l’accès aux origines, la Commission s’interroge sur les conséquences que pourrait avoir la découverte, pour un enfant, de certaines informations concernant le donneur (telles qu’une pathologie grave découverte ultérieurement par exemple), et par là-même sur la pertinence, l’adéquation et le caractère potentiellement excessif de la transmission et de la collecte de certaines données indirectement identifiantes, notamment des données de santé, au regard de la finalité précise d’accéder à ses origines personnelles. A ce titre, en application du principe de minimisation des données prévu par l’article 5-1-c du RGPD, la Commission invite le gouvernement à préciser, dans le cadre du décret d’application susmentionné, la nature exacte des données traitées et transmises à l’Agence de la biomédecine.
Sur la durée de conservation des données
Le projet prévoit une durée minimum de conservation des données de quatre-vingts ans, durée qui sera fixée par décret en Conseil d’Etat.
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CNILTEXT000038848207_16
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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Sur la durée de conservation des données
Le projet prévoit une durée minimum de conservation des données de quatre-vingts ans, durée qui sera fixée par décret en Conseil d’Etat.
Le gouvernement a justifié cette durée de conservation minimale sur la base des trois motifs suivants :
les gamètes d’un donneur peuvent être utilisées une dizaine d’années après le don ;
l’enfant issu du don doit être majeur pour demander l’accès à ses origines ;
l’enfant majeur peut initier cette démarche à tout âge.
La Commission rappelle que les données à caractère personnel doivent être conservées pour une durée limitée répondant aux finalités du traitement conformément aux dispositions de l’article 5-1-e) du RGPD. Elle demande donc, sauf à ce que la loi renvoit sur ce point à son décret d’application, que le projet prévoie lui-même une durée maximale et non une durée minimale de conservation des données.
Par ailleurs, la Commission suggère que des hypothèses dans lesquelles la durée de conservation pourrait être réduite soient prévues, par exemple lorsque tous les enfants issus d’un même donneur auront exercé leur droit d’accès à leurs origines ou encore lorsqu’il n’aura pas été fait usage des gamètes donnés.
Sur l’information et les modalités d’exercice des droits des personnes
|
Délibération 2019-097 du 11 juillet 2019
Sur la durée de conservation des données
Le projet prévoit une durée minimum de conservation des données de quatre-vingts ans, durée qui sera fixée par décret en Conseil d’Etat.
Le gouvernement a justifié cette durée de conservation minimale sur la base des trois motifs suivants :
les gamètes d’un donneur peuvent être utilisées une dizaine d’années après le don ;
l’enfant issu du don doit être majeur pour demander l’accès à ses origines ;
l’enfant majeur peut initier cette démarche à tout âge.
La Commission rappelle que les données à caractère personnel doivent être conservées pour une durée limitée répondant aux finalités du traitement conformément aux dispositions de l’article 5-1-e) du RGPD. Elle demande donc, sauf à ce que la loi renvoit sur ce point à son décret d’application, que le projet prévoie lui-même une durée maximale et non une durée minimale de conservation des données.
Par ailleurs, la Commission suggère que des hypothèses dans lesquelles la durée de conservation pourrait être réduite soient prévues, par exemple lorsque tous les enfants issus d’un même donneur auront exercé leur droit d’accès à leurs origines ou encore lorsqu’il n’aura pas été fait usage des gamètes donnés.
Sur l’information et les modalités d’exercice des droits des personnes
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CNILTEXT000038848207_17
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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Sur l’information et les modalités d’exercice des droits des personnes
La Commission rappelle que les responsables de traitement devront s’assurer de la mise en œuvre effective des droits des personnes concernées (tiers donneur, enfant), prévus aux dispositions des articles 12 à 23 du RGPD (droit à l’information, droit d’accès, de rectification et de limitation du traitement).
Plus précisément, s’agissant du droit à l’information des tiers donneurs mentionné à l’article 13 du RGPD et par application du principe de transparence visé à l’article 12 du RGPD, la Commission considère que les tiers donneurs devront être expressément informés de la transmission possible, à la majorité des enfants conçus et pour ceux qui en feraient la demande, des données indirectement identifiantes collectées les concernant ainsi que, le cas échéant, des données d’identification. Elle souhaite que cette information intervienne préalablement à la collecte des données et au don.
En ce qui concerne l’article 3 bis du projet de loi, la Commission demande que le dispositif prévu en matière d’information soit complété dans le projet de loi :
le donneur devrait être expressément informé que le consentement au don emporte le consentement à la transmission de ses données indirectement identifiantes ;
l’information devrait également porter sur les risques de ré-identification dans le cadre de la transmission des données indirectement identifiantes.
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Délibération 2019-097 du 11 juillet 2019
Sur l’information et les modalités d’exercice des droits des personnes
La Commission rappelle que les responsables de traitement devront s’assurer de la mise en œuvre effective des droits des personnes concernées (tiers donneur, enfant), prévus aux dispositions des articles 12 à 23 du RGPD (droit à l’information, droit d’accès, de rectification et de limitation du traitement).
Plus précisément, s’agissant du droit à l’information des tiers donneurs mentionné à l’article 13 du RGPD et par application du principe de transparence visé à l’article 12 du RGPD, la Commission considère que les tiers donneurs devront être expressément informés de la transmission possible, à la majorité des enfants conçus et pour ceux qui en feraient la demande, des données indirectement identifiantes collectées les concernant ainsi que, le cas échéant, des données d’identification. Elle souhaite que cette information intervienne préalablement à la collecte des données et au don.
En ce qui concerne l’article 3 bis du projet de loi, la Commission demande que le dispositif prévu en matière d’information soit complété dans le projet de loi :
le donneur devrait être expressément informé que le consentement au don emporte le consentement à la transmission de ses données indirectement identifiantes ;
l’information devrait également porter sur les risques de ré-identification dans le cadre de la transmission des données indirectement identifiantes.
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CNILTEXT000038848207_18
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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l’information devrait également porter sur les risques de ré-identification dans le cadre de la transmission des données indirectement identifiantes.
Par ailleurs, la Commission souligne que si les traitements envisagés devaient être fondés sur le respect d’une obligation légale, comme semble le prévoir le projet, les tiers donneurs seront privés de l’exercice de leur droit d’opposition visé à l’article 21 du RGPD. Aussi, elle formule le souhait que la loi prévoie expressément que le donneur sera informé de ce que ses données feront obligatoirement l’objet d’un traitement dans le cadre de la mise en œuvre du droit à l’accès aux origines si la rédaction actuelle devait être maintenue. Les modalités selon lesquelles cette information sera délivrée devront par ailleurs être précisées dans le décret susmentionné.
Sur la sécurité des données
Les traitements concernés étant susceptibles d’engendrer un risque élevé pour les droits et libertés des personnes physiques, la Commission rappelle enfin qu’une analyse d’impact sur la protection des données devra être menée par les responsables de traitement en application des dispositions de l’article 35 du RGPD.
Sur les dispositions relatives aux traitements algorithmiques de données de santé (article 11 du projet de loi)
L’article 11 du projet insère un nouvel article L.4001-1 dans le code de la santé publique relatif aux garanties prévues en cas de recours à un traitement algorithmique de données massives par un professionnel de santé.
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Délibération 2019-097 du 11 juillet 2019
l’information devrait également porter sur les risques de ré-identification dans le cadre de la transmission des données indirectement identifiantes.
Par ailleurs, la Commission souligne que si les traitements envisagés devaient être fondés sur le respect d’une obligation légale, comme semble le prévoir le projet, les tiers donneurs seront privés de l’exercice de leur droit d’opposition visé à l’article 21 du RGPD. Aussi, elle formule le souhait que la loi prévoie expressément que le donneur sera informé de ce que ses données feront obligatoirement l’objet d’un traitement dans le cadre de la mise en œuvre du droit à l’accès aux origines si la rédaction actuelle devait être maintenue. Les modalités selon lesquelles cette information sera délivrée devront par ailleurs être précisées dans le décret susmentionné.
Sur la sécurité des données
Les traitements concernés étant susceptibles d’engendrer un risque élevé pour les droits et libertés des personnes physiques, la Commission rappelle enfin qu’une analyse d’impact sur la protection des données devra être menée par les responsables de traitement en application des dispositions de l’article 35 du RGPD.
Sur les dispositions relatives aux traitements algorithmiques de données de santé (article 11 du projet de loi)
L’article 11 du projet insère un nouvel article L.4001-1 dans le code de la santé publique relatif aux garanties prévues en cas de recours à un traitement algorithmique de données massives par un professionnel de santé.
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CNILTEXT000038848207_19
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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A titre liminaire, la Commission relève l’ambiguïté du concept de traitement de données massives utilisé aux fins de statuer sur la situation individuelle d’un patient. En effet, le traitement massif intervient en amont de la prise en charge individuelle afin d’identifier des règles qui seront ensuite appliquées lors de la prise en charge d’un patient dont les données seront soumises au système. Ainsi, c’est davantage le produit du traitement de données massives qui fait l’objet d’une utilisation en appui de l’acte médical.
S’agissant de l’information des personnes concernées, le projet de loi prévoit que la personne est informée de l’utilisation d’un traitement algorithmique de données massives et des modalités d’action de ce traitement. Sur ce point, le gouvernement a précisé que l’information des personnes prises en charge interviendrait lors de la délivrance des résultats, et non préalablement à l’utilisation du traitement.
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Délibération 2019-097 du 11 juillet 2019
A titre liminaire, la Commission relève l’ambiguïté du concept de traitement de données massives utilisé aux fins de statuer sur la situation individuelle d’un patient. En effet, le traitement massif intervient en amont de la prise en charge individuelle afin d’identifier des règles qui seront ensuite appliquées lors de la prise en charge d’un patient dont les données seront soumises au système. Ainsi, c’est davantage le produit du traitement de données massives qui fait l’objet d’une utilisation en appui de l’acte médical.
S’agissant de l’information des personnes concernées, le projet de loi prévoit que la personne est informée de l’utilisation d’un traitement algorithmique de données massives et des modalités d’action de ce traitement. Sur ce point, le gouvernement a précisé que l’information des personnes prises en charge interviendrait lors de la délivrance des résultats, et non préalablement à l’utilisation du traitement.
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CNILTEXT000042348029_16
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CNILTEXT000042348029
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2020-006 du 3 septembre 2020
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Délibération de la formation restreinte no SAN-2020-006 du 3 septembre 2020 concernant le rectorat X
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SAN-2020-006
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2020-09-03
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Le président
Alexandre LINDEN
Cette décision est susceptible de faire l’objet d’un recours devant le Conseil d’État dans un délai de deux mois à compter de sa notification.
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Délibération SAN-2020-006 du 3 septembre 2020
Le président
Alexandre LINDEN
Cette décision est susceptible de faire l’objet d’un recours devant le Conseil d’État dans un délai de deux mois à compter de sa notification.
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CNILTEXT000038848207_20
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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Bien que l’introduction dans la loi de telles dispositions constitue une avancée notable et qui doit être soulignée, la Commission souhaite attirer l’attention du gouvernement sur la nécessité de préserver toute la portée des principes posés notamment par les dispositions des articles L. 1111-2 et L. 1111-4 du CSP selon lesquelles le patient a le droit d’être informé sur son état de santé et des traitements qui lui sont proposés, et prend, avec le professionnel de santé et compte tenu des informations et des préconisations qu'il lui fournit, les décisions concernant sa santé.
La Commission recommande en conséquence que le recours à un tel traitement fasse l’objet d’une information préalable à son utilisation par le professionnel de santé.
Sur la communication des résultats, la Commission recommande que la rédaction du projet de loi distingue clairement le résultat brut issu de l’algorithme de l’appréciation et de la décision du professionnel de santé dans le cadre de la prise en charge du patient. Cette distinction permettrait de garantir, d’une part, l’accès de la personne concernée à l’ensemble des informations qui la concerne et d’autre part, les principes d’indépendance et de liberté de prescription du professionnel de santé. C’est également une mesure qui vise à garantir que la décision médicale ne se fonde pas exclusivement sur un traitement automatisé de données conformément aux dispositions des articles 22 du RGPD et 47 de la loi informatique et libertés .
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Délibération 2019-097 du 11 juillet 2019
Bien que l’introduction dans la loi de telles dispositions constitue une avancée notable et qui doit être soulignée, la Commission souhaite attirer l’attention du gouvernement sur la nécessité de préserver toute la portée des principes posés notamment par les dispositions des articles L. 1111-2 et L. 1111-4 du CSP selon lesquelles le patient a le droit d’être informé sur son état de santé et des traitements qui lui sont proposés, et prend, avec le professionnel de santé et compte tenu des informations et des préconisations qu'il lui fournit, les décisions concernant sa santé.
La Commission recommande en conséquence que le recours à un tel traitement fasse l’objet d’une information préalable à son utilisation par le professionnel de santé.
Sur la communication des résultats, la Commission recommande que la rédaction du projet de loi distingue clairement le résultat brut issu de l’algorithme de l’appréciation et de la décision du professionnel de santé dans le cadre de la prise en charge du patient. Cette distinction permettrait de garantir, d’une part, l’accès de la personne concernée à l’ensemble des informations qui la concerne et d’autre part, les principes d’indépendance et de liberté de prescription du professionnel de santé. C’est également une mesure qui vise à garantir que la décision médicale ne se fonde pas exclusivement sur un traitement automatisé de données conformément aux dispositions des articles 22 du RGPD et 47 de la loi informatique et libertés .
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CNILTEXT000038848207_21
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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Sur le paramétrage du traitement algorithmique, la Commission s’interroge sur le rôle précis du professionnel de santé sur un tel dispositif, la nature des modifications qu’il pourrait lui apporter (choix des données massives, options de traitement des données du patient ?) et les conséquences qui pourraient en résulter aussi bien pour lui (mise en jeu de sa responsabilité) que pour le patient (en cas d’erreur ou de dysfonctionnement par exemple).
La Commission considère que ces dispositions peuvent être interprétées de deux manières. La première interprétation, qui ne soulèverait pas de difficulté particulière, serait de considérer qu’il s’agit pour le professionnel de santé de renseigner les données individuelles du patient dont il assure la prise en charge dans l’outil mettant en œuvre un traitement algorithmique, afin d’obtenir un résultat.
La seconde hypothèse consisterait à permettre au professionnel de santé de modifier le traitement algorithmique lui-même. Dans cette seconde hypothèse, la Commission considère qu’une telle pratique devrait être encadrée plus précisément, dans la mesure où tout professionnel de santé ne dispose pas des compétences techniques nécessaires à de telles interventions.
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Délibération 2019-097 du 11 juillet 2019
Sur le paramétrage du traitement algorithmique, la Commission s’interroge sur le rôle précis du professionnel de santé sur un tel dispositif, la nature des modifications qu’il pourrait lui apporter (choix des données massives, options de traitement des données du patient ?) et les conséquences qui pourraient en résulter aussi bien pour lui (mise en jeu de sa responsabilité) que pour le patient (en cas d’erreur ou de dysfonctionnement par exemple).
La Commission considère que ces dispositions peuvent être interprétées de deux manières. La première interprétation, qui ne soulèverait pas de difficulté particulière, serait de considérer qu’il s’agit pour le professionnel de santé de renseigner les données individuelles du patient dont il assure la prise en charge dans l’outil mettant en œuvre un traitement algorithmique, afin d’obtenir un résultat.
La seconde hypothèse consisterait à permettre au professionnel de santé de modifier le traitement algorithmique lui-même. Dans cette seconde hypothèse, la Commission considère qu’une telle pratique devrait être encadrée plus précisément, dans la mesure où tout professionnel de santé ne dispose pas des compétences techniques nécessaires à de telles interventions.
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CNILTEXT000038848207_22
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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La Commission suggère donc au gouvernement de clarifier le projet afin qu’il soit précisé si le professionnel de santé visé dans le II du projet d’article L. 4001-1 du CSP est le professionnel participant à la prise en charge du patient ou un professionnel exerçant ses missions pour le compte du fournisseur du traitement algorithmique ainsi que sur le sens à donner au terme paramétrage .
Dans ce cadre, elle s’interroge en outre sur le fait de savoir si l’intervention humaine sur le paramétrage du traitement algorithmique ne pourrait pas plutôt porter, non sur chaque décision individuelle, mais sur des séries de décisions. Cette supervision pourrait ainsi prendre la forme d’une délibération humaine et contradictoire, avec la création, par exemple, d’un collège médical (au niveau de la structure qui déploie le système) qui encadrerait et accompagnerait l’utilisation globale de l’algorithme, en examinant et en interrogeant son paramétrage mais aussi tous les effets – directs et indirects – du système.
Par ailleurs, la Commission attire l’attention du gouvernement sur l’absence d’évaluation scientifique de tels traitements, en dehors de celles prévues actuellement dans le cadre du marquage CE préalable à la mise sur le marché des dispositifs médicaux et qui pourraient paraître insuffisantes s’agissant de l’appréciation de l’efficacité du produit concerné.
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Délibération 2019-097 du 11 juillet 2019
La Commission suggère donc au gouvernement de clarifier le projet afin qu’il soit précisé si le professionnel de santé visé dans le II du projet d’article L. 4001-1 du CSP est le professionnel participant à la prise en charge du patient ou un professionnel exerçant ses missions pour le compte du fournisseur du traitement algorithmique ainsi que sur le sens à donner au terme paramétrage .
Dans ce cadre, elle s’interroge en outre sur le fait de savoir si l’intervention humaine sur le paramétrage du traitement algorithmique ne pourrait pas plutôt porter, non sur chaque décision individuelle, mais sur des séries de décisions. Cette supervision pourrait ainsi prendre la forme d’une délibération humaine et contradictoire, avec la création, par exemple, d’un collège médical (au niveau de la structure qui déploie le système) qui encadrerait et accompagnerait l’utilisation globale de l’algorithme, en examinant et en interrogeant son paramétrage mais aussi tous les effets – directs et indirects – du système.
Par ailleurs, la Commission attire l’attention du gouvernement sur l’absence d’évaluation scientifique de tels traitements, en dehors de celles prévues actuellement dans le cadre du marquage CE préalable à la mise sur le marché des dispositifs médicaux et qui pourraient paraître insuffisantes s’agissant de l’appréciation de l’efficacité du produit concerné.
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CNILTEXT000038848207_23
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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Sur ce point, la Commission relève en effet qu’un traitement algorithmique de données massives utilisé par un professionnel de santé dans le cadre de la réalisation d’actes à visée préventive, pronostique, diagnostique ou thérapeutique, comme c’est le cas d’un logiciel d’aide au diagnostic, à la décision ou à la prescription, pourrait s’apparenter à un dispositif médical, tel que défini par les dispositions des articles L. 5211-1 et suivant du CSP et la jurisprudence établie par la CJUE dans sa décision du 7 décembre 2017 (C‑329/16, 7 décembre 2017) et reprise par le Conseil d’État.
Elle recommande donc qu’une évaluation de l’intérêt scientifique et de la pertinence des résultats proposés par ces traitements soit systématiquement prévue et préalable à leur utilisation dans le cadre d’actes à visée préventive, pronostique, diagnostique ou thérapeutique.
Dans ses dernières observations, le gouvernement a indiqué que la notion de traitement algorithmique se réfère à trois cas : les cas couverts par le I du texte seraient les applications de diagnostic et ceux couverts par les II et III les dispositifs médicaux implantables (par exemple un pancréas artificiel, prothèse de hanche, implant mammaire, etc.). Le gouvernement a ajouté que les autres formes d'intelligence artificielle (IA) ne sont pas exclues du champ d’application du futur article L. 4001-1 du CSP sans pour autant préciser s’il s’agissait ou non de dispositifs médicaux.
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Délibération 2019-097 du 11 juillet 2019
Sur ce point, la Commission relève en effet qu’un traitement algorithmique de données massives utilisé par un professionnel de santé dans le cadre de la réalisation d’actes à visée préventive, pronostique, diagnostique ou thérapeutique, comme c’est le cas d’un logiciel d’aide au diagnostic, à la décision ou à la prescription, pourrait s’apparenter à un dispositif médical, tel que défini par les dispositions des articles L. 5211-1 et suivant du CSP et la jurisprudence établie par la CJUE dans sa décision du 7 décembre 2017 (C‑329/16, 7 décembre 2017) et reprise par le Conseil d’État.
Elle recommande donc qu’une évaluation de l’intérêt scientifique et de la pertinence des résultats proposés par ces traitements soit systématiquement prévue et préalable à leur utilisation dans le cadre d’actes à visée préventive, pronostique, diagnostique ou thérapeutique.
Dans ses dernières observations, le gouvernement a indiqué que la notion de traitement algorithmique se réfère à trois cas : les cas couverts par le I du texte seraient les applications de diagnostic et ceux couverts par les II et III les dispositifs médicaux implantables (par exemple un pancréas artificiel, prothèse de hanche, implant mammaire, etc.). Le gouvernement a ajouté que les autres formes d'intelligence artificielle (IA) ne sont pas exclues du champ d’application du futur article L. 4001-1 du CSP sans pour autant préciser s’il s’agissait ou non de dispositifs médicaux.
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CNILTEXT000038848207_24
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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La Commission relève que, si les réponses apportées par le gouvernement sur le paramétrage de l’algorithme par le professionnel de santé, son évaluation, les conséquences sur la responsabilité, sont claires s’agissant des dispositifs médicaux en tant que tels et ne posent pas de difficultés nouvelles au regard de ce qui est déjà mis en œuvre en pratique, tel n’est pas le cas des autres formes d’IA pour lesquelles la Commission insiste sur la nécessité de définir un cadre juridique dédié.
Par conséquent et au regard de l’ensemble de ces éléments, la Commission suggère qu’il soit expressément indiqué dans le texte que les traitements mentionnés relèvent de la législation applicable aux dispositifs médicaux. Cette précision permettrait ainsi d’écarter du champ d’application du texte, des traitements dont il ne définit ni la nature ni le régime juridique applicable.
Par ailleurs, la Commission relève que l’utilisation de tels traitements est susceptible de revêtir un caractère expérimental, en l’absence de validation d’une telle pratique par la Haute Autorité de santé (HAS), qui a pour mission notamment de recommander les bonnes pratiques auprès des professionnels de la santé.
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Délibération 2019-097 du 11 juillet 2019
La Commission relève que, si les réponses apportées par le gouvernement sur le paramétrage de l’algorithme par le professionnel de santé, son évaluation, les conséquences sur la responsabilité, sont claires s’agissant des dispositifs médicaux en tant que tels et ne posent pas de difficultés nouvelles au regard de ce qui est déjà mis en œuvre en pratique, tel n’est pas le cas des autres formes d’IA pour lesquelles la Commission insiste sur la nécessité de définir un cadre juridique dédié.
Par conséquent et au regard de l’ensemble de ces éléments, la Commission suggère qu’il soit expressément indiqué dans le texte que les traitements mentionnés relèvent de la législation applicable aux dispositifs médicaux. Cette précision permettrait ainsi d’écarter du champ d’application du texte, des traitements dont il ne définit ni la nature ni le régime juridique applicable.
Par ailleurs, la Commission relève que l’utilisation de tels traitements est susceptible de revêtir un caractère expérimental, en l’absence de validation d’une telle pratique par la Haute Autorité de santé (HAS), qui a pour mission notamment de recommander les bonnes pratiques auprès des professionnels de la santé.
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CNILTEXT000038848207_25
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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En pareils cas, leur utilisation devrait alors intervenir dans le respect des dispositions du code de la santé publique applicables en matière de recherches impliquant la personne humaine et des dispositions relatives aux recherches, aux études et aux évaluations dans le domaine de la santé prévues aux articles 72 et suivants de la loi informatique et libertés .
Sur l’examen des caractéristiques génétiques à des fins de recherche scientifique (art. 18 du projet de loi)
L’article 18 du projet prévoit des modifications des dispositions du CSP et de la loi informatique et libertés .
Á titre liminaire, la Commission rappelle que le RGPD, dans son article 9, a inscrit les données génétiques dans la catégorie des données dont le traitement est par principe interdit et ne peut intervenir que dans des conditions limitativement énumérées par ce même article, ainsi que par le droit des États membres de l’Union européenne.
La Commission rappelle par ailleurs que les prélèvements effectués à partir d’éléments et produits du corps humain constituent, de par leur nature, des sources de données que l’on pourrait qualifier d’intarissables, au regard de l’évolution constante des techniques d’analyse. Les conditions de leur conservation et de leur utilisation se doivent donc d’être particulièrement rigoureuses et respectueuses des droits des personnes.
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Délibération 2019-097 du 11 juillet 2019
En pareils cas, leur utilisation devrait alors intervenir dans le respect des dispositions du code de la santé publique applicables en matière de recherches impliquant la personne humaine et des dispositions relatives aux recherches, aux études et aux évaluations dans le domaine de la santé prévues aux articles 72 et suivants de la loi informatique et libertés .
Sur l’examen des caractéristiques génétiques à des fins de recherche scientifique (art. 18 du projet de loi)
L’article 18 du projet prévoit des modifications des dispositions du CSP et de la loi informatique et libertés .
Á titre liminaire, la Commission rappelle que le RGPD, dans son article 9, a inscrit les données génétiques dans la catégorie des données dont le traitement est par principe interdit et ne peut intervenir que dans des conditions limitativement énumérées par ce même article, ainsi que par le droit des États membres de l’Union européenne.
La Commission rappelle par ailleurs que les prélèvements effectués à partir d’éléments et produits du corps humain constituent, de par leur nature, des sources de données que l’on pourrait qualifier d’intarissables, au regard de l’évolution constante des techniques d’analyse. Les conditions de leur conservation et de leur utilisation se doivent donc d’être particulièrement rigoureuses et respectueuses des droits des personnes.
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CNILTEXT000038848207_26
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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La Commission a pu constater, dans le cadre de l’examen de dossiers de demande d’autorisation à des fins de recherche, que de nombreux chercheurs rencontraient des difficultés pour informer les personnes concernées dans le cadre de projets nécessitant la réutilisation d’échantillons biologiques, mais également de données. Dans ce cadre, notamment s’agissant de projets de recherche publique, est régulièrement invoqué le manque de moyens humains et financiers pour justifier de l’impossibilité d’informer les personnes. Elle suggère donc qu’une réflexion soit menée, non pas pour créer des dérogations à l’obligation d’informer, mais pour trouver des solutions visant à permettre aux chercheurs de réaliser leurs missions dans des conditions favorables au respect des droits des personnes dont les données et/ou échantillons font l’objet de réutilisations. Sur ce point, la Commission renvoie par exemple au dispositif mis en place dans le cadre de la méthodologie de référence 004 (MR 004) par lequel les personnes concernées peuvent consulter les projets de recherche mis en œuvre par le biais d’un site Internet dédié, dont ils ont été préalablement informés individuellement.
Sur la mise à jour des dispositions issues de l’actuel article L. 1131-1-1 du CSP (projet d’article L. 1130-5 du CSP)
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Délibération 2019-097 du 11 juillet 2019
La Commission a pu constater, dans le cadre de l’examen de dossiers de demande d’autorisation à des fins de recherche, que de nombreux chercheurs rencontraient des difficultés pour informer les personnes concernées dans le cadre de projets nécessitant la réutilisation d’échantillons biologiques, mais également de données. Dans ce cadre, notamment s’agissant de projets de recherche publique, est régulièrement invoqué le manque de moyens humains et financiers pour justifier de l’impossibilité d’informer les personnes. Elle suggère donc qu’une réflexion soit menée, non pas pour créer des dérogations à l’obligation d’informer, mais pour trouver des solutions visant à permettre aux chercheurs de réaliser leurs missions dans des conditions favorables au respect des droits des personnes dont les données et/ou échantillons font l’objet de réutilisations. Sur ce point, la Commission renvoie par exemple au dispositif mis en place dans le cadre de la méthodologie de référence 004 (MR 004) par lequel les personnes concernées peuvent consulter les projets de recherche mis en œuvre par le biais d’un site Internet dédié, dont ils ont été préalablement informés individuellement.
Sur la mise à jour des dispositions issues de l’actuel article L. 1131-1-1 du CSP (projet d’article L. 1130-5 du CSP)
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CNILTEXT000038848207_27
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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Sur la mise à jour des dispositions issues de l’actuel article L. 1131-1-1 du CSP (projet d’article L. 1130-5 du CSP)
L’article L.1131-1-1 du CSP, introduit par la loi n° 2012-300 du 5 mars 2012 relative aux recherches impliquant la personne humaine, instaure une dérogation au principe d’obligation de recueil du consentement exprès et écrit à l’examen des caractéristiques génétiques (article 16-10 du code civil), lorsque celui-ci est réalisé à des fins de recherche scientifique. Ainsi, un tel examen peut être réalisé sur la base d’une information et à condition que la personne concernée ne s’y oppose pas. Si la personne concernée ne peut être retrouvée, un comité de protection des personnes, tel que prévu par l’article 1123-7 du CSP peut rendre un avis favorable à la réalisation de cet examen.
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Délibération 2019-097 du 11 juillet 2019
Sur la mise à jour des dispositions issues de l’actuel article L. 1131-1-1 du CSP (projet d’article L. 1130-5 du CSP)
L’article L.1131-1-1 du CSP, introduit par la loi n° 2012-300 du 5 mars 2012 relative aux recherches impliquant la personne humaine, instaure une dérogation au principe d’obligation de recueil du consentement exprès et écrit à l’examen des caractéristiques génétiques (article 16-10 du code civil), lorsque celui-ci est réalisé à des fins de recherche scientifique. Ainsi, un tel examen peut être réalisé sur la base d’une information et à condition que la personne concernée ne s’y oppose pas. Si la personne concernée ne peut être retrouvée, un comité de protection des personnes, tel que prévu par l’article 1123-7 du CSP peut rendre un avis favorable à la réalisation de cet examen.
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CNILTEXT000038848207_28
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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Alors que l’esprit des dispositions actuelles (qui prévoient que le présent article n'est pas applicable aux recherches dont les résultats sont susceptibles de permettre la levée de l'anonymat des personnes concernées ) ainsi que l’interprétation qui en avait été faite par le Conseil d’État dans son étude en 2009 sur la révision des lois de bioéthique, semblent être d’écarter de ce dispositif dérogatoire au consentement les examens génétiques présentant un risque de ré-identification élevé, la Commission relève que la rédaction du dernier alinéa du projet d’article L. 1130-5 du CSP laisserait désormais la possibilité aux chercheurs de réaliser tout type d’examen génétique (incluant par exemple un séquençage complet du génome) à la seule condition que la publication relative à la recherche ne présente que des résultats anonymes. Cette analyse a été confirmée par le gouvernement.
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Délibération 2019-097 du 11 juillet 2019
Alors que l’esprit des dispositions actuelles (qui prévoient que le présent article n'est pas applicable aux recherches dont les résultats sont susceptibles de permettre la levée de l'anonymat des personnes concernées ) ainsi que l’interprétation qui en avait été faite par le Conseil d’État dans son étude en 2009 sur la révision des lois de bioéthique, semblent être d’écarter de ce dispositif dérogatoire au consentement les examens génétiques présentant un risque de ré-identification élevé, la Commission relève que la rédaction du dernier alinéa du projet d’article L. 1130-5 du CSP laisserait désormais la possibilité aux chercheurs de réaliser tout type d’examen génétique (incluant par exemple un séquençage complet du génome) à la seule condition que la publication relative à la recherche ne présente que des résultats anonymes. Cette analyse a été confirmée par le gouvernement.
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CNILTEXT000038848207_29
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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A l’heure où le recours à ce type d’examen devient de plus en plus aisé et tend à se banaliser, aussi bien dans le cadre des soins que des projets de recherche, la Commission alerte dès à présent sur la prolifération de bases de données utilisées et réutilisées notamment à des fins de recherche publique et privée, dans lesquelles figurent d’ores et déjà des données génétiques provenant d’examens de plus en plus complets et concernant un nombre exponentiel de personnes. Considérant également les nombreuses bases génétiques constituées dans le cadre de services commerciaux de séquençage et de partage de données génétiques pour les particuliers, et sans entrer dans la démonstration de l’illicéité de telles activités au niveau national, la Commission relève qu’une donnée génétique ne peut plus aujourd’hui être considérée comme anonyme et que des données issues d’un séquençage complet présentent en outre un risque élevé de ré-identification.
Dès lors, la Commission s’inquiète d’une diminution des garanties des droits des personnes, en l’absence de consentement explicite, voire d’information des personnes, et ce même si un comité de protection des personnes est consulté dans ce dernier cas.
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Délibération 2019-097 du 11 juillet 2019
A l’heure où le recours à ce type d’examen devient de plus en plus aisé et tend à se banaliser, aussi bien dans le cadre des soins que des projets de recherche, la Commission alerte dès à présent sur la prolifération de bases de données utilisées et réutilisées notamment à des fins de recherche publique et privée, dans lesquelles figurent d’ores et déjà des données génétiques provenant d’examens de plus en plus complets et concernant un nombre exponentiel de personnes. Considérant également les nombreuses bases génétiques constituées dans le cadre de services commerciaux de séquençage et de partage de données génétiques pour les particuliers, et sans entrer dans la démonstration de l’illicéité de telles activités au niveau national, la Commission relève qu’une donnée génétique ne peut plus aujourd’hui être considérée comme anonyme et que des données issues d’un séquençage complet présentent en outre un risque élevé de ré-identification.
Dès lors, la Commission s’inquiète d’une diminution des garanties des droits des personnes, en l’absence de consentement explicite, voire d’information des personnes, et ce même si un comité de protection des personnes est consulté dans ce dernier cas.
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CNILTEXT000038848207_30
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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A cet égard, elle demande que des garanties appropriées soient prévues par les textes, notamment en termes d’information des personnes et d’exercice de leurs droits, ce qu’elle aura la possibilité de mesurer dans le cadre de l’avis qu’elle prononcera sur le projet de décret dont elle devra être saisie, en application de l’article 8-I-4°-a) de la loi informatique et libertés et qui fixera les conditions d’application de ces dispositions.
La Commission rappelle que cette dérogation au principe prévu par le législateur du recueil d’un consentement exprès des personnes concernées lors d’un examen des caractéristiques génétiques devrait revêtir un caractère exceptionnel.
La Commission précise enfin que des projets ne permettant pas une information des personnes doivent dans tous les cas faire l’objet d’une demande d’autorisation auprès d’elle, en application des dispositions des articles 72 et suivants de la loi informatique et libertés modifiée.
La Commission prend acte que le projet prévoit l’ajout de la définition du programme de recherche . Elle relève que ce dernier sera limité à des recherches dans un domaine scientifique déterminé .
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Délibération 2019-097 du 11 juillet 2019
A cet égard, elle demande que des garanties appropriées soient prévues par les textes, notamment en termes d’information des personnes et d’exercice de leurs droits, ce qu’elle aura la possibilité de mesurer dans le cadre de l’avis qu’elle prononcera sur le projet de décret dont elle devra être saisie, en application de l’article 8-I-4°-a) de la loi informatique et libertés et qui fixera les conditions d’application de ces dispositions.
La Commission rappelle que cette dérogation au principe prévu par le législateur du recueil d’un consentement exprès des personnes concernées lors d’un examen des caractéristiques génétiques devrait revêtir un caractère exceptionnel.
La Commission précise enfin que des projets ne permettant pas une information des personnes doivent dans tous les cas faire l’objet d’une demande d’autorisation auprès d’elle, en application des dispositions des articles 72 et suivants de la loi informatique et libertés modifiée.
La Commission prend acte que le projet prévoit l’ajout de la définition du programme de recherche . Elle relève que ce dernier sera limité à des recherches dans un domaine scientifique déterminé .
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CNILTEXT000038032552_42
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CNILTEXT000038032552
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-001 du 21 janvier 2019
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Délibération de la formation restreinte n° SAN – 2019-001 du 21 janvier 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-001
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2019-01-21
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Le constat du défaut de clarté et de caractère compréhensible doit être également fait s’agissant de la mention de la base juridique des traitements de personnalisation de la publicité. En effet, la société indique tout d’abord dans les Règles de Confidentialité : Nous vous demandons l'autorisation de traiter vos informations à des fins spécifiques, et vous êtes libre de revenir sur votre consentement à tout moment. Par exemple, nous vous demandons l'autorisation de vous fournir des services personnalisés, tels que des annonces […] . La base juridique retenue ici apparait donc être le consentement. Toutefois, la société ajoute plus loin se fonder sur l’intérêt légitime, notamment pour mener des actions de marketing en vue de faire connaître nos services auprès des utilisateurs et surtout avoir recours à la publicité afin de rendre un grand nombre de nos services disponibles gratuitement pour les utilisateurs.
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Délibération SAN-2019-001 du 21 janvier 2019
Le constat du défaut de clarté et de caractère compréhensible doit être également fait s’agissant de la mention de la base juridique des traitements de personnalisation de la publicité. En effet, la société indique tout d’abord dans les Règles de Confidentialité : Nous vous demandons l'autorisation de traiter vos informations à des fins spécifiques, et vous êtes libre de revenir sur votre consentement à tout moment. Par exemple, nous vous demandons l'autorisation de vous fournir des services personnalisés, tels que des annonces […] . La base juridique retenue ici apparait donc être le consentement. Toutefois, la société ajoute plus loin se fonder sur l’intérêt légitime, notamment pour mener des actions de marketing en vue de faire connaître nos services auprès des utilisateurs et surtout avoir recours à la publicité afin de rendre un grand nombre de nos services disponibles gratuitement pour les utilisateurs.
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CNILTEXT000038848207_31
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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La Commission prend acte que le projet prévoit l’ajout de la définition du programme de recherche . Elle relève que ce dernier sera limité à des recherches dans un domaine scientifique déterminé .
Cependant, alors que les dispositions actuelles prévoient que la personne est informée du projet de recherche, celle-ci ne serait désormais informée que du programme de recherche, dans le cadre duquel une multitude de projets de recherche pourront être réalisés, tant par des acteurs publics que privés. La Commission s’interroge donc sur l’articulation de ces dispositions avec celles de la loi informatique et libertés qui prévoient, en plus de l’information générale, une obligation d’information individuelle des personnes concernées, qui s’applique pour chaque traitement de données.
Par ailleurs, la Commission relève que le projet d’article prévoit que le droit d’opposition à l’examen peut être exprimé sans forme tant qu’il n’y a pas eu de manipulation de l’élément concerné en raison de la recherche.
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Délibération 2019-097 du 11 juillet 2019
La Commission prend acte que le projet prévoit l’ajout de la définition du programme de recherche . Elle relève que ce dernier sera limité à des recherches dans un domaine scientifique déterminé .
Cependant, alors que les dispositions actuelles prévoient que la personne est informée du projet de recherche, celle-ci ne serait désormais informée que du programme de recherche, dans le cadre duquel une multitude de projets de recherche pourront être réalisés, tant par des acteurs publics que privés. La Commission s’interroge donc sur l’articulation de ces dispositions avec celles de la loi informatique et libertés qui prévoient, en plus de l’information générale, une obligation d’information individuelle des personnes concernées, qui s’applique pour chaque traitement de données.
Par ailleurs, la Commission relève que le projet d’article prévoit que le droit d’opposition à l’examen peut être exprimé sans forme tant qu’il n’y a pas eu de manipulation de l’élément concerné en raison de la recherche.
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CNILTEXT000038848207_32
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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Interrogé par les services de la Commission, le gouvernement a indiqué que ce droit d’opposition portait spécifiquement sur la réalisation de l’examen des caractéristiques génétiques des personnes et non sur le traitement des données associées au prélèvement ou produites ultérieurement après son analyse. Á cet égard, la Commission souhaite donc rappeler que le droit d’opposition prévu à l’article 21 du RGPD ainsi que le droit à l’effacement prévu par l’article 17 du RGPD sont applicables dans les conditions prévues par le RGPD, et ce, même après manipulation. Elle demande que des précisions soient apportées en ce sens dans le projet.
Enfin, le projet précise les situations dans lesquelles, en cas d’absence d’information des personnes, la recherche nécessite l’avis d’un CPP. Outre les personnes décédées ou perdues de vue, il est évoqué l’hypothèse de la personne hors d’état d’exprimer sa volonté. La Commission s’interroge sur l’opportunité dans ce dernier cas de délivrer l’information à la personne de confiance, à la famille ou aux proches, telles que définies au dernier alinéa de l’actuel article L. 1131-1 du CSP.
Sur le projet d’article 75 de la loi informatique et libertés
Le projet semble laisser entendre que le consentement exprès de la personne au traitement des données doit être recueilli en complément de celui exigé pour la réalisation de l’examen de ses caractéristiques génétiques.
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Délibération 2019-097 du 11 juillet 2019
Interrogé par les services de la Commission, le gouvernement a indiqué que ce droit d’opposition portait spécifiquement sur la réalisation de l’examen des caractéristiques génétiques des personnes et non sur le traitement des données associées au prélèvement ou produites ultérieurement après son analyse. Á cet égard, la Commission souhaite donc rappeler que le droit d’opposition prévu à l’article 21 du RGPD ainsi que le droit à l’effacement prévu par l’article 17 du RGPD sont applicables dans les conditions prévues par le RGPD, et ce, même après manipulation. Elle demande que des précisions soient apportées en ce sens dans le projet.
Enfin, le projet précise les situations dans lesquelles, en cas d’absence d’information des personnes, la recherche nécessite l’avis d’un CPP. Outre les personnes décédées ou perdues de vue, il est évoqué l’hypothèse de la personne hors d’état d’exprimer sa volonté. La Commission s’interroge sur l’opportunité dans ce dernier cas de délivrer l’information à la personne de confiance, à la famille ou aux proches, telles que définies au dernier alinéa de l’actuel article L. 1131-1 du CSP.
Sur le projet d’article 75 de la loi informatique et libertés
Le projet semble laisser entendre que le consentement exprès de la personne au traitement des données doit être recueilli en complément de celui exigé pour la réalisation de l’examen de ses caractéristiques génétiques.
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CNILTEXT000038848207_33
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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De plus, il semble qu’une confusion soit opérée entre le consentement à la réalisation de l’examen des caractéristiques génétiques (articles 16-10 du code civil et L 1131-1 du CSP) et le consentement à participer à une recherche (article L1122-1-1 du CSP).
La Commission considère de manière générale que le consentement exprès des personnes devrait être recueilli préalablement à la réalisation d’un examen des caractéristiques génétiques, qu’il soit réalisé dans le cadre de la prise en charge sanitaire ou dans le cadre d’un projet de recherche, en dehors du cas prévu à l’article L. 1131-1-1 du CSP (projet d’article L. 1130-5 du CSP).
La Commission attire l’attention du gouvernement sur le fait que la rédaction envisagée pourrait être interprétée comme une obligation de recueillir le consentement exprès de la personne concernée en cas de réutilisation de résultats d’examens, qui pourraient par exemple figurer dans son dossier médical. Or, elle considère que la réutilisation de résultats d’examen des caractéristiques génétiques obtenus dans le cadre des soins ne nécessite pas de recueillir le consentement exprès de la personne concernée. La personne doit cependant en être informée et doit pouvoir s’y opposer.
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Délibération 2019-097 du 11 juillet 2019
De plus, il semble qu’une confusion soit opérée entre le consentement à la réalisation de l’examen des caractéristiques génétiques (articles 16-10 du code civil et L 1131-1 du CSP) et le consentement à participer à une recherche (article L1122-1-1 du CSP).
La Commission considère de manière générale que le consentement exprès des personnes devrait être recueilli préalablement à la réalisation d’un examen des caractéristiques génétiques, qu’il soit réalisé dans le cadre de la prise en charge sanitaire ou dans le cadre d’un projet de recherche, en dehors du cas prévu à l’article L. 1131-1-1 du CSP (projet d’article L. 1130-5 du CSP).
La Commission attire l’attention du gouvernement sur le fait que la rédaction envisagée pourrait être interprétée comme une obligation de recueillir le consentement exprès de la personne concernée en cas de réutilisation de résultats d’examens, qui pourraient par exemple figurer dans son dossier médical. Or, elle considère que la réutilisation de résultats d’examen des caractéristiques génétiques obtenus dans le cadre des soins ne nécessite pas de recueillir le consentement exprès de la personne concernée. La personne doit cependant en être informée et doit pouvoir s’y opposer.
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CNILTEXT000038848207_34
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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Par ailleurs la rédaction envisagée dissocie à juste titre le droit d’opposition à participer à une recherche et le droit d’opposition au traitement de ses données. La Commission tient cependant à indiquer que le fait pour une personne de s’opposer à participer à un projet de recherche devrait de facto entraîner l’interdiction de traiter les données de la personne concernée.
Afin de clarifier ces dispositions, la Commission propose au gouvernement la rédaction suivante :
Dans le cas où la recherche nécessite la réalisation d’un examen des caractéristiques génétiques, le consentement éclairé et exprès des personnes concernées doit être obtenu préalablement à la réalisation de l’examen. Le présent article n'est pas applicable aux recherches réalisées en application de l'article L. 1130-5 du code de la santé publique.
Sur l’examen des caractéristiques génétiques à des fins de prise en charge sanitaire (art. 25 du projet de loi)
L’article 25 du projet prévoit plusieurs modifications du code de la santé publique :
Sur la mise à jour de l’intitulé du chapitre Ier du titre III du livre Ier de la première partie du code de la santé publique
Le projet prévoit de remplacer le titre actuel Principes généraux , par le titre suivant : Information de la parentèle et modalités de mise en œuvre des examens des caractéristiques génétiques .
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Délibération 2019-097 du 11 juillet 2019
Par ailleurs la rédaction envisagée dissocie à juste titre le droit d’opposition à participer à une recherche et le droit d’opposition au traitement de ses données. La Commission tient cependant à indiquer que le fait pour une personne de s’opposer à participer à un projet de recherche devrait de facto entraîner l’interdiction de traiter les données de la personne concernée.
Afin de clarifier ces dispositions, la Commission propose au gouvernement la rédaction suivante :
Dans le cas où la recherche nécessite la réalisation d’un examen des caractéristiques génétiques, le consentement éclairé et exprès des personnes concernées doit être obtenu préalablement à la réalisation de l’examen. Le présent article n'est pas applicable aux recherches réalisées en application de l'article L. 1130-5 du code de la santé publique.
Sur l’examen des caractéristiques génétiques à des fins de prise en charge sanitaire (art. 25 du projet de loi)
L’article 25 du projet prévoit plusieurs modifications du code de la santé publique :
Sur la mise à jour de l’intitulé du chapitre Ier du titre III du livre Ier de la première partie du code de la santé publique
Le projet prévoit de remplacer le titre actuel Principes généraux , par le titre suivant : Information de la parentèle et modalités de mise en œuvre des examens des caractéristiques génétiques .
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CNILTEXT000038848207_35
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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Le projet prévoit de remplacer le titre actuel Principes généraux , par le titre suivant : Information de la parentèle et modalités de mise en œuvre des examens des caractéristiques génétiques .
La Commission, comprend suite aux observations du gouvernement, que les termes information de la parentèle font référence à l’information des membres de la famille potentiellement concernés par le diagnostic d’une anomalie génétique chez une personne, conformément aux dispositions de l’article L 1131-1-2 du code de la santé publique. Le gouvernement précise sur ce point que la parentèle inclut les apparentés du premier degré (parents, enfants, frères et sœurs), voire du second degré (petits-enfants, grands-parents, oncles, tantes, neveux, nièces), voire de degré supérieur.
La Commission s’interroge sur l’interprétation de la mention de l’information de la parentèle dans le titre du chapitre Ier.
En l’état actuel des textes, la personne de confiance ou un proche de la personne concernée sont également des personnes pouvant être visées par l’information évoquée dans le titre du chapitre Ier (actuel article L.1131-1, alinéa 2 du CSP).
Lors des échanges qui ont eu lieu avec les services de la Commission, le gouvernement a indiqué qu’une modification de l’actuel article L.1131-1 du CSP, dont la Commission regrette de ne pas avoir été saisie, était également prévue.
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Délibération 2019-097 du 11 juillet 2019
Le projet prévoit de remplacer le titre actuel Principes généraux , par le titre suivant : Information de la parentèle et modalités de mise en œuvre des examens des caractéristiques génétiques .
La Commission, comprend suite aux observations du gouvernement, que les termes information de la parentèle font référence à l’information des membres de la famille potentiellement concernés par le diagnostic d’une anomalie génétique chez une personne, conformément aux dispositions de l’article L 1131-1-2 du code de la santé publique. Le gouvernement précise sur ce point que la parentèle inclut les apparentés du premier degré (parents, enfants, frères et sœurs), voire du second degré (petits-enfants, grands-parents, oncles, tantes, neveux, nièces), voire de degré supérieur.
La Commission s’interroge sur l’interprétation de la mention de l’information de la parentèle dans le titre du chapitre Ier.
En l’état actuel des textes, la personne de confiance ou un proche de la personne concernée sont également des personnes pouvant être visées par l’information évoquée dans le titre du chapitre Ier (actuel article L.1131-1, alinéa 2 du CSP).
Lors des échanges qui ont eu lieu avec les services de la Commission, le gouvernement a indiqué qu’une modification de l’actuel article L.1131-1 du CSP, dont la Commission regrette de ne pas avoir été saisie, était également prévue.
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CNILTEXT000038848207_36
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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Ainsi, la Commission relève que le projet prévoit, dans un nouvel article L.1130-3 du CSP, que par dérogation à l’article 16-10 du code civil, lorsque la personne est hors d’état d’exprimer son consentement, l’examen ou l’identification peut être entrepris à des fins médicales dans l’intérêt de cette personne. Préalablement à la réalisation de l’examen, le médecin s’assure qu’elle ne s’y soit pas opposée antérieurement auprès de la personne de confiance mentionnée à l’article L. 1111-6 du CSP, de la famille ou, à défaut, d’un proche ou, le cas échéant, auprès de la personne chargée d’une mesure juridique de protection de la personne.
Il en résulte que la modification projetée remplace la consultation préalable de la personne de confiance, la famille ou l’un des proches de la personne concernée, dans l’hypothèse où il est impossible de recueillir le consentement de la personne concernée pour la réalisation d’un examen de ses caractéristiques génétiques, par la vérification par le médecin, auprès des personnes précédemment visées et de la personne chargée d’une mesure juridique de protection, que la personne concernée ne s’est pas opposée antérieurement à la réalisation d’un tel examen.
Dès lors, la Commission s’interroge :
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Délibération 2019-097 du 11 juillet 2019
Ainsi, la Commission relève que le projet prévoit, dans un nouvel article L.1130-3 du CSP, que par dérogation à l’article 16-10 du code civil, lorsque la personne est hors d’état d’exprimer son consentement, l’examen ou l’identification peut être entrepris à des fins médicales dans l’intérêt de cette personne. Préalablement à la réalisation de l’examen, le médecin s’assure qu’elle ne s’y soit pas opposée antérieurement auprès de la personne de confiance mentionnée à l’article L. 1111-6 du CSP, de la famille ou, à défaut, d’un proche ou, le cas échéant, auprès de la personne chargée d’une mesure juridique de protection de la personne.
Il en résulte que la modification projetée remplace la consultation préalable de la personne de confiance, la famille ou l’un des proches de la personne concernée, dans l’hypothèse où il est impossible de recueillir le consentement de la personne concernée pour la réalisation d’un examen de ses caractéristiques génétiques, par la vérification par le médecin, auprès des personnes précédemment visées et de la personne chargée d’une mesure juridique de protection, que la personne concernée ne s’est pas opposée antérieurement à la réalisation d’un tel examen.
Dès lors, la Commission s’interroge :
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CNILTEXT000038848207_37
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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Dès lors, la Commission s’interroge :
d’une part, sur les raisons de la suppression de l’information préalable délivrée aux personnes visées par le projet d’article L.1130-3 du CSP relative à la réalisation d’un examen des caractéristiques génétiques de la personne concernée hors d’état d’exprimer son consentement ;
et, d’autre part, sur les hypothèses dans lesquelles une personne concernée aurait pu prononcer son opposition par anticipation à la réalisation d’un examen des caractéristiques génétiques, alors que l’article 16-10 du code civil prévoit que le consentement exprès de la personne doit être préalablement recueilli ;
sur la mention de la parentèle dans le titre du chapitre Ier, qui ne semble plus correspondre aux personnes visées par les projets d’articles L. 1130-1 et L. 1130-3 du CSP.
La Commission demande que le projet soit précisé sur ces points.
Sur la modification de l’article L 1131-1-3 du CSP
Le projet prévoit de modifier les destinataires des résultats des examens des caractéristiques génétiques. En plus de la personne concernée, les destinataires des résultats ne seraient donc plus, le cas échéant, ceux visés à l’actuel article L. 1131-1 du CSP, mais le représentant en matière personnelle de la personne .
Cette modification appelle les observations suivantes :
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Délibération 2019-097 du 11 juillet 2019
Dès lors, la Commission s’interroge :
d’une part, sur les raisons de la suppression de l’information préalable délivrée aux personnes visées par le projet d’article L.1130-3 du CSP relative à la réalisation d’un examen des caractéristiques génétiques de la personne concernée hors d’état d’exprimer son consentement ;
et, d’autre part, sur les hypothèses dans lesquelles une personne concernée aurait pu prononcer son opposition par anticipation à la réalisation d’un examen des caractéristiques génétiques, alors que l’article 16-10 du code civil prévoit que le consentement exprès de la personne doit être préalablement recueilli ;
sur la mention de la parentèle dans le titre du chapitre Ier, qui ne semble plus correspondre aux personnes visées par les projets d’articles L. 1130-1 et L. 1130-3 du CSP.
La Commission demande que le projet soit précisé sur ces points.
Sur la modification de l’article L 1131-1-3 du CSP
Le projet prévoit de modifier les destinataires des résultats des examens des caractéristiques génétiques. En plus de la personne concernée, les destinataires des résultats ne seraient donc plus, le cas échéant, ceux visés à l’actuel article L. 1131-1 du CSP, mais le représentant en matière personnelle de la personne .
Cette modification appelle les observations suivantes :
|
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CNILTEXT000038848207_38
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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Cette modification appelle les observations suivantes :
S’agissant des termes représentant en matière personnelle de la personne , la Commission s’interroge sur les personnes visées par cette appellation. Le gouvernement ayant précisé, lors des échanges qui ont eu lieu avec les services de la Commission, que ces termes doivent s’entendre comme le représentant d’un majeur protégé au sens de l’article 459, alinéa 2 du code civil. Le gouvernement précise sur ce point que le représentant d’un majeur protégé est la personne habilitée par le juge à représenter un majeur protégé, (article 494-1 et suivants du code civil), ou le tuteur lorsque le juge leur a donné un pouvoir de représentation, mais également le mandataire dans le cas d’un mandat de protection future activé). Dès lors, la Commission recommande qu’il soit fait référence à ces dispositions dans le projet.
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Délibération 2019-097 du 11 juillet 2019
Cette modification appelle les observations suivantes :
S’agissant des termes représentant en matière personnelle de la personne , la Commission s’interroge sur les personnes visées par cette appellation. Le gouvernement ayant précisé, lors des échanges qui ont eu lieu avec les services de la Commission, que ces termes doivent s’entendre comme le représentant d’un majeur protégé au sens de l’article 459, alinéa 2 du code civil. Le gouvernement précise sur ce point que le représentant d’un majeur protégé est la personne habilitée par le juge à représenter un majeur protégé, (article 494-1 et suivants du code civil), ou le tuteur lorsque le juge leur a donné un pouvoir de représentation, mais également le mandataire dans le cas d’un mandat de protection future activé). Dès lors, la Commission recommande qu’il soit fait référence à ces dispositions dans le projet.
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CNILTEXT000038848207_39
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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S’agissant des termes le cas échéant , la Commission s’interroge sur les hypothèses dans lesquelles les résultats de l’examen des caractéristiques génétiques, seraient susceptibles d’être communiqués par le médecin prescripteur au représentant en matière personnelle de la personne . Le gouvernement a précisé, lors des échanges qui ont eu lieu avec les services de la Commission, que le représentant en matière personnelle de la personne est informé des résultats de l’examen des caractéristiques génétiques de la personne concernée, lorsque la loi prévoit précisément que la personne protégée doit être représentée pour les décisions ou les actes relevant de sa personne.
Les dispositions de l’actuel article L.1131-1-3 du CSP renvoient aujourd’hui à la transmission, le cas échéant, aux personnes mentionnées au second alinéa de l’article L. 1131-1 du CSP, qui prévoient que (…) lorsqu'il est impossible de recueillir le consentement de cette personne ou, le cas échéant, de consulter la personne de confiance mentionnée à
l'article L. 1111-6
, la famille ou, à défaut, un de ses proches, l'examen ou l'identification peuvent être entrepris à des fins médicales, dans l'intérêt de la personne .
Ainsi, les dispositions actuellement en vigueur semblent déterminer à la fois les destinataires des résultats des examens, mais également les cas dans lesquels les résultats peuvent leur être transmis : lorsqu’il est impossible de recueillir le consentement de la personne.
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Délibération 2019-097 du 11 juillet 2019
S’agissant des termes le cas échéant , la Commission s’interroge sur les hypothèses dans lesquelles les résultats de l’examen des caractéristiques génétiques, seraient susceptibles d’être communiqués par le médecin prescripteur au représentant en matière personnelle de la personne . Le gouvernement a précisé, lors des échanges qui ont eu lieu avec les services de la Commission, que le représentant en matière personnelle de la personne est informé des résultats de l’examen des caractéristiques génétiques de la personne concernée, lorsque la loi prévoit précisément que la personne protégée doit être représentée pour les décisions ou les actes relevant de sa personne.
Les dispositions de l’actuel article L.1131-1-3 du CSP renvoient aujourd’hui à la transmission, le cas échéant, aux personnes mentionnées au second alinéa de l’article L. 1131-1 du CSP, qui prévoient que (…) lorsqu'il est impossible de recueillir le consentement de cette personne ou, le cas échéant, de consulter la personne de confiance mentionnée à
l'article L. 1111-6
, la famille ou, à défaut, un de ses proches, l'examen ou l'identification peuvent être entrepris à des fins médicales, dans l'intérêt de la personne .
Ainsi, les dispositions actuellement en vigueur semblent déterminer à la fois les destinataires des résultats des examens, mais également les cas dans lesquels les résultats peuvent leur être transmis : lorsqu’il est impossible de recueillir le consentement de la personne.
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CNILTEXT000043305834_0
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CNILTEXT000043305834
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2020-095 du 24 septembre 2020
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Délibération n° 2020-095 du 24 septembre 2020 portant avis sur un projet de décret modifiant le décret du 5 mars 2015 portant création d'un traitement automatisé de données à caractère personnel dénommé « Fichier de traitement des signalements pour la prévention de la radicalisation à caractère terroriste »
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2020-095
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2020-09-24
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Avis favorable avec réserve.
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Délibération 2020-095 du 24 septembre 2020
Avis favorable avec réserve.
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CNILTEXT000038848207_40
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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Il en résulte que la modification projetée :
semble avoir pour conséquence, lorsque la personne est hors d’état d’exprimer son consentement, de restreindre le champ des personnes ayant accès aux résultats des analyses, qui s’étend aujourd’hui aux personnes visées à l’article L. 1131-1 alinéa 2 du CSP (personne de confiance, famille, proches), alors que ces dernières auront de facto connaissance de la réalisation d’un tel examen ;
ne permet pas de déterminer dans quels cas le représentant en matière personnelle de la personne est destinataire des résultats de l’examen ;
pourrait créer une incohérence entre la personne visée par le terme représentant en matière personnelle de la personne destinataire des résultats (nouvel article L.1131-1-3 du CSP), et la personne visée par le terme la personne chargée d’une mesure juridique de protection de la personne (nouvel article L.1130-3 du CSP) sollicitée par le médecin préalablement à la réalisation d’un examen des caractéristiques génétiques, s’il devait s’avérer que ces expressions ne visent pas les mêmes personnes.
La Commission demande donc que le projet soit clarifié sur ces points.
Sur la création de l’article L. 2131-1-1 du CSP
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Délibération 2019-097 du 11 juillet 2019
Il en résulte que la modification projetée :
semble avoir pour conséquence, lorsque la personne est hors d’état d’exprimer son consentement, de restreindre le champ des personnes ayant accès aux résultats des analyses, qui s’étend aujourd’hui aux personnes visées à l’article L. 1131-1 alinéa 2 du CSP (personne de confiance, famille, proches), alors que ces dernières auront de facto connaissance de la réalisation d’un tel examen ;
ne permet pas de déterminer dans quels cas le représentant en matière personnelle de la personne est destinataire des résultats de l’examen ;
pourrait créer une incohérence entre la personne visée par le terme représentant en matière personnelle de la personne destinataire des résultats (nouvel article L.1131-1-3 du CSP), et la personne visée par le terme la personne chargée d’une mesure juridique de protection de la personne (nouvel article L.1130-3 du CSP) sollicitée par le médecin préalablement à la réalisation d’un examen des caractéristiques génétiques, s’il devait s’avérer que ces expressions ne visent pas les mêmes personnes.
La Commission demande donc que le projet soit clarifié sur ces points.
Sur la création de l’article L. 2131-1-1 du CSP
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CNILTEXT000038848207_41
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CNILTEXT000038848207
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-097 du 11 juillet 2019
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Délibération n° 2019-097 du 11 juillet 2019 portant avis sur un projet de loi relatif à la bioéthique
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2019-097
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2019-07-11
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La Commission demande donc que le projet soit clarifié sur ces points.
Sur la création de l’article L. 2131-1-1 du CSP
La Commission prend également note que le projet d’article L 1131-1-3-II du CSP prévoit que le résultat d’un examen des caractéristiques génétiques d’une personne, ne sera pas transmis, le cas échéant, au laboratoire de biologie médicale intervenu dans la transmission de l’échantillon. En revanche, elle retient que ce dernier sera informé de la communication du résultat de l’examen au médecin prescripteur par le laboratoire autorisé.
La Vice-Présidente déléguée
Sophie LAMBREMON
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Délibération 2019-097 du 11 juillet 2019
La Commission demande donc que le projet soit clarifié sur ces points.
Sur la création de l’article L. 2131-1-1 du CSP
La Commission prend également note que le projet d’article L 1131-1-3-II du CSP prévoit que le résultat d’un examen des caractéristiques génétiques d’une personne, ne sera pas transmis, le cas échéant, au laboratoire de biologie médicale intervenu dans la transmission de l’échantillon. En revanche, elle retient que ce dernier sera informé de la communication du résultat de l’examen au médecin prescripteur par le laboratoire autorisé.
La Vice-Présidente déléguée
Sophie LAMBREMON
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CNILTEXT000038131876_0
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CNILTEXT000038131876
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2018-324 du 11 octobre 2018
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Délibération n° 2018-324 du 11 octobre 2018 portant avis sur un projet d’arrêté modifiant l’arrêté autorisant la création d’un traitement automatisé de données à caractère personnel dénommé « DOCVERIF » (demande d’avis n° 18013763)
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2018-324
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2018-10-11
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La Commission nationale de l'informatique et des libertés,
Saisie par le ministre de l’intérieur d’une demande d’avis relative à un projet d’arrêté modifiant l’arrêté autorisant la création d’un traitement automatisé de données à caractère personnel dénommé DOCVERIF ;
Vu la convention n° 108 du Conseil de l’Europe pour la protection des personnes à l’égard du traitement automatisé des données à caractère personnel ;
Vu la directive (UE) 2016/680 du Parlement européen et du Conseil du 27 avril 2016 relative à la protection des personnes des personnes physiques à l’égard du traitement de données à caractère personnel par les autorités compétentes à des fins de prévention et de détection des infractions pénales, d’enquêtes et de poursuites en la matière ou d’exécution de sanctions pénales, et à la libre circulation de ces données et abrogeant la décision cadre 2008/977/JAI du Conseil ;
Vu le code de l’entrée et du séjour des étrangers et du droit d’asile, notamment ses articles R. 311-13-1 et R. 611-1 ;
Vu la loi n° 78-17 du 6 janvier 1978 modifiée relative à l’informatique, aux fichiers et aux libertés, notamment ses articles 26-I, 30-II et son chapitre XIII ;
Vu le décret n° 55-1397 du 22 octobre 1955 modifié instituant la carte nationale d’identité ;
Vu le décret n° 2005-1309 du 20 octobre 2005 modifié pris pour l’application de la loi n° 78-17 du 6 janvier 1978 relative à l’informatique, aux fichiers et aux libertés ;
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Délibération 2018-324 du 11 octobre 2018
La Commission nationale de l'informatique et des libertés,
Saisie par le ministre de l’intérieur d’une demande d’avis relative à un projet d’arrêté modifiant l’arrêté autorisant la création d’un traitement automatisé de données à caractère personnel dénommé DOCVERIF ;
Vu la convention n° 108 du Conseil de l’Europe pour la protection des personnes à l’égard du traitement automatisé des données à caractère personnel ;
Vu la directive (UE) 2016/680 du Parlement européen et du Conseil du 27 avril 2016 relative à la protection des personnes des personnes physiques à l’égard du traitement de données à caractère personnel par les autorités compétentes à des fins de prévention et de détection des infractions pénales, d’enquêtes et de poursuites en la matière ou d’exécution de sanctions pénales, et à la libre circulation de ces données et abrogeant la décision cadre 2008/977/JAI du Conseil ;
Vu le code de l’entrée et du séjour des étrangers et du droit d’asile, notamment ses articles R. 311-13-1 et R. 611-1 ;
Vu la loi n° 78-17 du 6 janvier 1978 modifiée relative à l’informatique, aux fichiers et aux libertés, notamment ses articles 26-I, 30-II et son chapitre XIII ;
Vu le décret n° 55-1397 du 22 octobre 1955 modifié instituant la carte nationale d’identité ;
Vu le décret n° 2005-1309 du 20 octobre 2005 modifié pris pour l’application de la loi n° 78-17 du 6 janvier 1978 relative à l’informatique, aux fichiers et aux libertés ;
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CNILTEXT000038131876_1
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CNILTEXT000038131876
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2018-324 du 11 octobre 2018
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Délibération n° 2018-324 du 11 octobre 2018 portant avis sur un projet d’arrêté modifiant l’arrêté autorisant la création d’un traitement automatisé de données à caractère personnel dénommé « DOCVERIF » (demande d’avis n° 18013763)
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2018-324
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2018-10-11
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Vu le décret n° 2005-1309 du 20 octobre 2005 modifié pris pour l’application de la loi n° 78-17 du 6 janvier 1978 relative à l’informatique, aux fichiers et aux libertés ;
Vu le décret n° 1726-2005 du 30 décembre 2005 modifié relatif aux passeports ;
Vu le décret n° 2016-1460 du 28 octobre 2016 modifié autorisant la création d’un traitement de données à caractère personnel relatif aux passeports et aux cartes nationales d’identité ;
Vu l’a
rrêté du 10 août 2016 autorisant la création d'un traitement automatisé de données à caractère personnel dénommé DOCVERIF
;
Vu la délibération n° 2016-218 du 21 juillet 2016 portant avis sur un projet d’arrêté autorisant la création d’un traitement automatisé de données à caractère personnel dénommé DOCVERIF ;
Sur la proposition de M. Jean-François CARREZ, commissaire, et après avoir entendu les observations de Mme Nacima BELKACEM, commissaire du Gouvernement,
Émet l’avis suivant :
La Commission a été saisie par le ministre de l’intérieur d’une demande d’avis relative à la modification de l’arrêté autorisant la création d’un traitement automatisé de données à caractère personnel dénommé DOCVERIF .
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Délibération 2018-324 du 11 octobre 2018
Vu le décret n° 2005-1309 du 20 octobre 2005 modifié pris pour l’application de la loi n° 78-17 du 6 janvier 1978 relative à l’informatique, aux fichiers et aux libertés ;
Vu le décret n° 1726-2005 du 30 décembre 2005 modifié relatif aux passeports ;
Vu le décret n° 2016-1460 du 28 octobre 2016 modifié autorisant la création d’un traitement de données à caractère personnel relatif aux passeports et aux cartes nationales d’identité ;
Vu l’a
rrêté du 10 août 2016 autorisant la création d'un traitement automatisé de données à caractère personnel dénommé DOCVERIF
;
Vu la délibération n° 2016-218 du 21 juillet 2016 portant avis sur un projet d’arrêté autorisant la création d’un traitement automatisé de données à caractère personnel dénommé DOCVERIF ;
Sur la proposition de M. Jean-François CARREZ, commissaire, et après avoir entendu les observations de Mme Nacima BELKACEM, commissaire du Gouvernement,
Émet l’avis suivant :
La Commission a été saisie par le ministre de l’intérieur d’une demande d’avis relative à la modification de l’arrêté autorisant la création d’un traitement automatisé de données à caractère personnel dénommé DOCVERIF .
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CNILTEXT000038810992_31
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CNILTEXT000038810992
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-007 du 18 juillet 2019
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Délibération de la formation restreinte n° SAN – 2019-007 du 18 juillet 2019 prononçant une sanction pécuniaire à l’encontre de la société X
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SAN-2019-007
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2019-07-18
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matériels ou un préjudice moral . Or, la formation restreinte observe que la société n’a pas mesuré, avant d’être alertée par les services de la CNIL, l’importance de la sécurisation des données personnelles contenues dans ses systèmes d’information, malgré la nature des données traitées.
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Délibération SAN-2019-007 du 18 juillet 2019
matériels ou un préjudice moral . Or, la formation restreinte observe que la société n’a pas mesuré, avant d’être alertée par les services de la CNIL, l’importance de la sécurisation des données personnelles contenues dans ses systèmes d’information, malgré la nature des données traitées.
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CNILTEXT000038131876_2
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CNILTEXT000038131876
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2018-324 du 11 octobre 2018
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Délibération n° 2018-324 du 11 octobre 2018 portant avis sur un projet d’arrêté modifiant l’arrêté autorisant la création d’un traitement automatisé de données à caractère personnel dénommé « DOCVERIF » (demande d’avis n° 18013763)
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2018-324
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2018-10-11
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Ce traitement, sur lequel la Commission s’est déjà prononcée dans sa délibération du 21 juillet 2016 susvisée, a pour objet de renforcer l’efficacité de la lutte contre la fraude documentaire et l’usurpation d’identité en facilitant le contrôle de la validité des cartes nationales d’identité et des passeports par les services de la police nationale ainsi que de la gendarmerie nationale et ainsi lutter contre l’utilisation indue de ces documents, leur falsification ou leur contrefaçon.
Elle relève que la présente modification vise, d’une part, à élargir le contrôle effectué par les services précités aux titres de séjour étrangers et, d’autre part, à étendre les catégories de personnes pouvant accéder au traitement.
Dans la mesure où le traitement DOCVERIF a pour finalité la prévention, la recherche, la constatation ou la poursuite d’infractions pénales, celui-ci doit dès lors faire l’objet d’un arrêté, pris après avis motivé et publié de la Commission conformément aux dispositions de l’article 70-3 de la loi du 6 janvier 1978 modifiée.
Sur les finalités du traitement :
L’article 1er de l’arrêté du 10 août 2016 susvisé et autorisant la création du traitement DOCVERIF dispose que le traitement a pour finalité de faciliter le contrôle de la validité des documents émis par les autorités françaises et de lutter contre l’utilisation indue de tels documents, leur falsification ou leur contrefaçon .
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Délibération 2018-324 du 11 octobre 2018
Ce traitement, sur lequel la Commission s’est déjà prononcée dans sa délibération du 21 juillet 2016 susvisée, a pour objet de renforcer l’efficacité de la lutte contre la fraude documentaire et l’usurpation d’identité en facilitant le contrôle de la validité des cartes nationales d’identité et des passeports par les services de la police nationale ainsi que de la gendarmerie nationale et ainsi lutter contre l’utilisation indue de ces documents, leur falsification ou leur contrefaçon.
Elle relève que la présente modification vise, d’une part, à élargir le contrôle effectué par les services précités aux titres de séjour étrangers et, d’autre part, à étendre les catégories de personnes pouvant accéder au traitement.
Dans la mesure où le traitement DOCVERIF a pour finalité la prévention, la recherche, la constatation ou la poursuite d’infractions pénales, celui-ci doit dès lors faire l’objet d’un arrêté, pris après avis motivé et publié de la Commission conformément aux dispositions de l’article 70-3 de la loi du 6 janvier 1978 modifiée.
Sur les finalités du traitement :
L’article 1er de l’arrêté du 10 août 2016 susvisé et autorisant la création du traitement DOCVERIF dispose que le traitement a pour finalité de faciliter le contrôle de la validité des documents émis par les autorités françaises et de lutter contre l’utilisation indue de tels documents, leur falsification ou leur contrefaçon .
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CNILTEXT000038131876_3
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CNILTEXT000038131876
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2018-324 du 11 octobre 2018
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Délibération n° 2018-324 du 11 octobre 2018 portant avis sur un projet d’arrêté modifiant l’arrêté autorisant la création d’un traitement automatisé de données à caractère personnel dénommé « DOCVERIF » (demande d’avis n° 18013763)
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2018-324
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2018-10-11
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La Commission relève que si les finalités du traitement restent inchangées, l’article 2 du présent projet d’arrêté a pour objet de modifier le périmètre des titres pouvant être contrôlés afin d’ajouter aux cartes nationales d’identité et aux passeports, les titres de séjour comportant le composant électronique prévu à l’article R. 311-13-1 du code de l’entrée et du séjour des étrangers et du droit d’asile .
La Commission rappelle tout d’abord que lors de la création du traitement DOCVERIF , le ministère avait déjà indiqué que le traitement avait vocation à s’étendre à d’autres documents, en particulier aux titres de séjour. Elle prend par ailleurs acte des précisions apportées par ce dernier selon lesquelles cette extension vise à permettre de renforcer les moyens de la lutte contre la fraude documentaire sur l’ensemble des titres, conformément à l’objectif poursuivi par le traitement.
Dans ces conditions, la Commission estime que les finalités du traitement sont déterminées, explicites et légitimes, conformément aux dispositions de l’article 6-2° de la loi du 6 janvier 1978 modifié.
Sur les données collectées :
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Délibération 2018-324 du 11 octobre 2018
La Commission relève que si les finalités du traitement restent inchangées, l’article 2 du présent projet d’arrêté a pour objet de modifier le périmètre des titres pouvant être contrôlés afin d’ajouter aux cartes nationales d’identité et aux passeports, les titres de séjour comportant le composant électronique prévu à l’article R. 311-13-1 du code de l’entrée et du séjour des étrangers et du droit d’asile .
La Commission rappelle tout d’abord que lors de la création du traitement DOCVERIF , le ministère avait déjà indiqué que le traitement avait vocation à s’étendre à d’autres documents, en particulier aux titres de séjour. Elle prend par ailleurs acte des précisions apportées par ce dernier selon lesquelles cette extension vise à permettre de renforcer les moyens de la lutte contre la fraude documentaire sur l’ensemble des titres, conformément à l’objectif poursuivi par le traitement.
Dans ces conditions, la Commission estime que les finalités du traitement sont déterminées, explicites et légitimes, conformément aux dispositions de l’article 6-2° de la loi du 6 janvier 1978 modifié.
Sur les données collectées :
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CNILTEXT000038131876_4
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CNILTEXT000038131876
| 4 |
DELIBERATION
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VIGUEUR
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Avis
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Délibération 2018-324 du 11 octobre 2018
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Délibération n° 2018-324 du 11 octobre 2018 portant avis sur un projet d’arrêté modifiant l’arrêté autorisant la création d’un traitement automatisé de données à caractère personnel dénommé « DOCVERIF » (demande d’avis n° 18013763)
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2018-324
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2018-10-11
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Sur les données collectées :
L’article 3 du projet d’arrêté modifie les données pouvant être enregistrées dans le traitement DOCVERIF afin d’y ajouter la collecte des données relatives aux titres de séjours, à savoir : le type et le numéro du document, sa date de délivrance et de fin de validité, la mention du caractère valide ou non valide du document et, pour les seuls documents invalides, le motif de cette invalidité.
A titre liminaire, la Commission relève que ces données sont collectées au moyen d’une alimentation quotidienne par le traitement AGDREF 2 sur lequel la Commission s’est déjà prononcée. A cet égard, elle rappelle que toute modification substantielle de ce traitement doit faire l’objet d’un décret en Conseil d’Etat pris après avis de la Commission, conformément aux dispositions de l’article L. 611-5 du CESEDA et à l’article 30-II de la loi du 6 janvier 1978 modifiée. Si la Commission relève qu’un projet de décret modifiant le traitement AGDREF 2 lui a été transmis dans le cadre de l’examen d’une saisine portant sur un traitement distinct, elle regrette, dans un souci de cohérence, que la modification envisagée n’ait pas fait l’objet d’un acte réglementaire spécifique.
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Délibération 2018-324 du 11 octobre 2018
Sur les données collectées :
L’article 3 du projet d’arrêté modifie les données pouvant être enregistrées dans le traitement DOCVERIF afin d’y ajouter la collecte des données relatives aux titres de séjours, à savoir : le type et le numéro du document, sa date de délivrance et de fin de validité, la mention du caractère valide ou non valide du document et, pour les seuls documents invalides, le motif de cette invalidité.
A titre liminaire, la Commission relève que ces données sont collectées au moyen d’une alimentation quotidienne par le traitement AGDREF 2 sur lequel la Commission s’est déjà prononcée. A cet égard, elle rappelle que toute modification substantielle de ce traitement doit faire l’objet d’un décret en Conseil d’Etat pris après avis de la Commission, conformément aux dispositions de l’article L. 611-5 du CESEDA et à l’article 30-II de la loi du 6 janvier 1978 modifiée. Si la Commission relève qu’un projet de décret modifiant le traitement AGDREF 2 lui a été transmis dans le cadre de l’examen d’une saisine portant sur un traitement distinct, elle regrette, dans un souci de cohérence, que la modification envisagée n’ait pas fait l’objet d’un acte réglementaire spécifique.
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CNILTEXT000038131876_5
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CNILTEXT000038131876
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2018-324 du 11 octobre 2018
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Délibération n° 2018-324 du 11 octobre 2018 portant avis sur un projet d’arrêté modifiant l’arrêté autorisant la création d’un traitement automatisé de données à caractère personnel dénommé « DOCVERIF » (demande d’avis n° 18013763)
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2018-324
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2018-10-11
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En ce qui concerne les données enregistrées dans le traitement et relatives aux titres de séjour étrangers, la Commission prend acte qu’aucune information nominative n’est transmise ou conservée dans le traitement DOCVERIF , qui ne concerne que des documents et ne permet pas d’effectuer des recherches relatives à des personnes à partir des données collectées.
Elle relève par ailleurs que le projet d’arrêté prévoit que, contrairement à ce qui est actuellement prévu pour les cartes d’identité et les passeports, la date de fin de validité du titre de séjour soit enregistrée dans le traitement. La Commission prend acte des justifications apportées par le ministère selon lesquelles cette donnée doit permettre de connaître la fin exacte de la validité d’un document pour en établir le statut ( titre valide ou titre invalide ). Elle relève à cet égard que, contrairement aux cartes d’identité et passeports, les titres de séjour étrangers ont des durées de validité très variables, y compris au sein d’une même catégorie de titre de séjour.
Enfin, la Commission prend acte que le ministère entend désormais collecter la date de délivrance des passeports et des cartes nationales d’identité. Elle estime que cette modification n’appelle pas d’observation particulière au regard des finalités poursuivies par le traitement DOCVERIF .
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Délibération 2018-324 du 11 octobre 2018
En ce qui concerne les données enregistrées dans le traitement et relatives aux titres de séjour étrangers, la Commission prend acte qu’aucune information nominative n’est transmise ou conservée dans le traitement DOCVERIF , qui ne concerne que des documents et ne permet pas d’effectuer des recherches relatives à des personnes à partir des données collectées.
Elle relève par ailleurs que le projet d’arrêté prévoit que, contrairement à ce qui est actuellement prévu pour les cartes d’identité et les passeports, la date de fin de validité du titre de séjour soit enregistrée dans le traitement. La Commission prend acte des justifications apportées par le ministère selon lesquelles cette donnée doit permettre de connaître la fin exacte de la validité d’un document pour en établir le statut ( titre valide ou titre invalide ). Elle relève à cet égard que, contrairement aux cartes d’identité et passeports, les titres de séjour étrangers ont des durées de validité très variables, y compris au sein d’une même catégorie de titre de séjour.
Enfin, la Commission prend acte que le ministère entend désormais collecter la date de délivrance des passeports et des cartes nationales d’identité. Elle estime que cette modification n’appelle pas d’observation particulière au regard des finalités poursuivies par le traitement DOCVERIF .
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CNILTEXT000038131876_6
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CNILTEXT000038131876
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2018-324 du 11 octobre 2018
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Délibération n° 2018-324 du 11 octobre 2018 portant avis sur un projet d’arrêté modifiant l’arrêté autorisant la création d’un traitement automatisé de données à caractère personnel dénommé « DOCVERIF » (demande d’avis n° 18013763)
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2018-324
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2018-10-11
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Au regard de ces éléments, la Commission considère que les données ainsi collectées sont adéquates, pertinentes et non excessives, conformément à l’article 6-3° de la loi du 6 janvier 1978 modifiée.
Sur les destinataires des données :
L’article 5 du projet d’arrêté prévoit que deux catégories distinctes de destinataires peuvent avoir accès au traitement et sont identifiées comme appartenant au Cercle 1 d’une part, et au Cercle 2 d’autre part.
La Commission rappelle que l’arrêté du 10 août 2016 susvisé prévoit uniquement l’accès au traitement pour les personnes du Cercle 1 , soit les agents de la police nationale et les militaires de la gendarmerie nationale spécialement habilités, dans la limite du besoin d’en connaitre. Le Cercle 1 intègre également les agents du ministère de l’intérieur en charge de l’application de la réglementation relative aux documents entrant dans le périmètre du traitement, ainsi que les agents de l’Agence nationale des titres sécurisés chargés de la mise en œuvre du traitement. A cet égard, elle réitère la réserve formulée dans la délibération du 21 juillet 2016 susvisée relative à la création du traitement DOCVERIF selon laquelle il devrait être précisé que seuls peuvent avoir accès au traitement, les agents de la police nationale et les militaires de la gendarmerie nationale ayant des missions de contrôle de l’identité des personnes et de vérification de la validité des documents.
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Délibération 2018-324 du 11 octobre 2018
Au regard de ces éléments, la Commission considère que les données ainsi collectées sont adéquates, pertinentes et non excessives, conformément à l’article 6-3° de la loi du 6 janvier 1978 modifiée.
Sur les destinataires des données :
L’article 5 du projet d’arrêté prévoit que deux catégories distinctes de destinataires peuvent avoir accès au traitement et sont identifiées comme appartenant au Cercle 1 d’une part, et au Cercle 2 d’autre part.
La Commission rappelle que l’arrêté du 10 août 2016 susvisé prévoit uniquement l’accès au traitement pour les personnes du Cercle 1 , soit les agents de la police nationale et les militaires de la gendarmerie nationale spécialement habilités, dans la limite du besoin d’en connaitre. Le Cercle 1 intègre également les agents du ministère de l’intérieur en charge de l’application de la réglementation relative aux documents entrant dans le périmètre du traitement, ainsi que les agents de l’Agence nationale des titres sécurisés chargés de la mise en œuvre du traitement. A cet égard, elle réitère la réserve formulée dans la délibération du 21 juillet 2016 susvisée relative à la création du traitement DOCVERIF selon laquelle il devrait être précisé que seuls peuvent avoir accès au traitement, les agents de la police nationale et les militaires de la gendarmerie nationale ayant des missions de contrôle de l’identité des personnes et de vérification de la validité des documents.
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CNILTEXT000025668547_8
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CNILTEXT000025668547
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DELIBERATION
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VIGUEUR
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Autre autorisation
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DELIBERATION n°2012-066 du 8 mars 2012
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Délibération n°2012-066 du 8 mars 2012 autorisant la mise en œuvre par le Groupement de coopération sanitaire (GCS) e-Santé Picardie d’un outil intitulé Comédi-e permettant la réalisation d’actes de télémédecine entre professionnels du milieu médico-social
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2012-066
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2012-03-08
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Observations propres au traitement
Le responsable de traitement doit s’assurer que le traitement est opéré dans des conditions conformes aux dispositions législatives et règlementaires applicables et notamment celles des articles L.1111-8 et R.6316-10 du code de la santé publique.
La Présidente
Isabelle FALQUE PIERROTIN
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DELIBERATION n°2012-066 du 8 mars 2012
Observations propres au traitement
Le responsable de traitement doit s’assurer que le traitement est opéré dans des conditions conformes aux dispositions législatives et règlementaires applicables et notamment celles des articles L.1111-8 et R.6316-10 du code de la santé publique.
La Présidente
Isabelle FALQUE PIERROTIN
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CNILTEXT000038131876_7
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CNILTEXT000038131876
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2018-324 du 11 octobre 2018
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Délibération n° 2018-324 du 11 octobre 2018 portant avis sur un projet d’arrêté modifiant l’arrêté autorisant la création d’un traitement automatisé de données à caractère personnel dénommé « DOCVERIF » (demande d’avis n° 18013763)
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2018-324
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2018-10-11
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Le projet d’arrêté vise à étendre les catégories de personnes pouvant accéder aux données enregistrées dans le traitement au Cercle 2 , composé des administrations publiques, des organismes chargés d’une mission de service public et des établissements de crédit.
La Commission relève que sont susceptibles d’être concernés :
au titre des administrations publiques : celles qui doivent réaliser un contrôle de la validité des pièces d’identité qui leur sont fournies (comme par exemple le Service central des armes ou le Conseil national des activités privées de sécurité (CNAPS)) ;
au titre des organismes chargés d’une mission de service public : ceux qui, dans leurs missions légales ou règlementaires, sont habilités à réaliser des vérifications de pièces d’identité, tels que certains organismes relevant du secteur de la protection sociale.
La Commission relève que le ministère a précisé qu’un tel élargissement du périmètre à des personnes pouvant accéder au dispositif au-delà des autorités habilitées à procéder à un contrôle d’identité doit permettre de lutter plus efficacement contre la fraude documentaire, dans des domaines relevant tant du champ public que des relations entre personnes privées afin de contribuer à démonétiser les titres frauduleux et à leur faire perdre leur valeur, par exemple dans le cadre de prestations sociales indûment octroyées.
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Délibération 2018-324 du 11 octobre 2018
Le projet d’arrêté vise à étendre les catégories de personnes pouvant accéder aux données enregistrées dans le traitement au Cercle 2 , composé des administrations publiques, des organismes chargés d’une mission de service public et des établissements de crédit.
La Commission relève que sont susceptibles d’être concernés :
au titre des administrations publiques : celles qui doivent réaliser un contrôle de la validité des pièces d’identité qui leur sont fournies (comme par exemple le Service central des armes ou le Conseil national des activités privées de sécurité (CNAPS)) ;
au titre des organismes chargés d’une mission de service public : ceux qui, dans leurs missions légales ou règlementaires, sont habilités à réaliser des vérifications de pièces d’identité, tels que certains organismes relevant du secteur de la protection sociale.
La Commission relève que le ministère a précisé qu’un tel élargissement du périmètre à des personnes pouvant accéder au dispositif au-delà des autorités habilitées à procéder à un contrôle d’identité doit permettre de lutter plus efficacement contre la fraude documentaire, dans des domaines relevant tant du champ public que des relations entre personnes privées afin de contribuer à démonétiser les titres frauduleux et à leur faire perdre leur valeur, par exemple dans le cadre de prestations sociales indûment octroyées.
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CNILTEXT000038131876_8
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CNILTEXT000038131876
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2018-324 du 11 octobre 2018
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Délibération n° 2018-324 du 11 octobre 2018 portant avis sur un projet d’arrêté modifiant l’arrêté autorisant la création d’un traitement automatisé de données à caractère personnel dénommé « DOCVERIF » (demande d’avis n° 18013763)
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2018-324
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2018-10-11
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En ce qui concerne les établissements de crédit, également visés au titre des utilisateurs du Cercle 2 , le ministère a précisé que l’accès aux données enregistrées dans le traitement DOCVERIF doit leur permettre de satisfaire au respect des obligations légales auxquelles ils sont soumis s’agissant notamment de vérification des éléments d’identification de leurs clients.
Sans remettre en cause les justifications apportées par le ministère permettant de préciser les organismes visés par le projet d’arrêté, la Commission considère que les formulations retenues ne permettent pas de délimiter précisément le périmètre des utilisateurs du Cercle 2 expressément visés, ni les circonstances dans lesquelles cet accès sera autorisé.
Elle relève cependant que ces nouveaux accès sont subordonnés à la mise en œuvre des garanties suivantes.
A titre liminaire, la Commission prend acte que les personnes visées par l’extension projetée n’ont pas vocation à prendre connaissance d’autres informations que celles relatives à la validité ou non du titre dont le numéro a été saisi. Ainsi, trois types de réponses peuvent être renvoyés lors de l’interrogation du dispositif : titre valide , titre invalide ou titre inconnu . Contrairement à ce qui est prévu pour les utilisateurs du Cercle 1 , aucune donnée nominative, aucun motif d'invalidité ou encore aucune conduite à tenir ne sera accessible aux utilisateurs de ce deuxième cercle.
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Délibération 2018-324 du 11 octobre 2018
En ce qui concerne les établissements de crédit, également visés au titre des utilisateurs du Cercle 2 , le ministère a précisé que l’accès aux données enregistrées dans le traitement DOCVERIF doit leur permettre de satisfaire au respect des obligations légales auxquelles ils sont soumis s’agissant notamment de vérification des éléments d’identification de leurs clients.
Sans remettre en cause les justifications apportées par le ministère permettant de préciser les organismes visés par le projet d’arrêté, la Commission considère que les formulations retenues ne permettent pas de délimiter précisément le périmètre des utilisateurs du Cercle 2 expressément visés, ni les circonstances dans lesquelles cet accès sera autorisé.
Elle relève cependant que ces nouveaux accès sont subordonnés à la mise en œuvre des garanties suivantes.
A titre liminaire, la Commission prend acte que les personnes visées par l’extension projetée n’ont pas vocation à prendre connaissance d’autres informations que celles relatives à la validité ou non du titre dont le numéro a été saisi. Ainsi, trois types de réponses peuvent être renvoyés lors de l’interrogation du dispositif : titre valide , titre invalide ou titre inconnu . Contrairement à ce qui est prévu pour les utilisateurs du Cercle 1 , aucune donnée nominative, aucun motif d'invalidité ou encore aucune conduite à tenir ne sera accessible aux utilisateurs de ce deuxième cercle.
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CNILTEXT000038131876_9
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CNILTEXT000038131876
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2018-324 du 11 octobre 2018
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Délibération n° 2018-324 du 11 octobre 2018 portant avis sur un projet d’arrêté modifiant l’arrêté autorisant la création d’un traitement automatisé de données à caractère personnel dénommé « DOCVERIF » (demande d’avis n° 18013763)
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2018-324
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2018-10-11
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La Commission prend également acte de ce que l’article 5 de l’arrêté du 10 août 2016 est modifié afin de préciser les modalités d’interrogation du traitement par les utilisateurs du Cercle 2 , qui s’effectuera uniquement par la saisie du type de document, de son numéro et de sa date de délivrance.
Le projet d’arrêté précise que l’accès aux données enregistrées dans le traitement par l’ensemble de ces catégories d’organismes est subordonné à la conclusion d’une convention avec le responsable de traitement, et ce, afin de préciser les modalités d’accès aux dites données. Si les catégories d’informations devant être fournies par l’organisme ont été transmises à la Commission, elle regrette néanmoins qu’une convention type ne lui ait pas été communiquée.
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Délibération 2018-324 du 11 octobre 2018
La Commission prend également acte de ce que l’article 5 de l’arrêté du 10 août 2016 est modifié afin de préciser les modalités d’interrogation du traitement par les utilisateurs du Cercle 2 , qui s’effectuera uniquement par la saisie du type de document, de son numéro et de sa date de délivrance.
Le projet d’arrêté précise que l’accès aux données enregistrées dans le traitement par l’ensemble de ces catégories d’organismes est subordonné à la conclusion d’une convention avec le responsable de traitement, et ce, afin de préciser les modalités d’accès aux dites données. Si les catégories d’informations devant être fournies par l’organisme ont été transmises à la Commission, elle regrette néanmoins qu’une convention type ne lui ait pas été communiquée.
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CNILTEXT000038131876_10
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CNILTEXT000038131876
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2018-324 du 11 octobre 2018
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Délibération n° 2018-324 du 11 octobre 2018 portant avis sur un projet d’arrêté modifiant l’arrêté autorisant la création d’un traitement automatisé de données à caractère personnel dénommé « DOCVERIF » (demande d’avis n° 18013763)
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2018-324
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2018-10-11
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Dans ce contexte, la Commission rappelle qu’une vigilance particulière s’impose en matière de mise à jour des données, compte tenu des conséquences importantes qu’emporteraient, pour les personnes contrôlées, d’éventuelles erreurs sur le statut du document présenté à l’occasion d’un contrôle. Elle prend à cet égard acte de ce que l’alimentation du traitement DOCVERIF est quotidienne. Au regard notamment du caractère particulièrement hétérogène des organismes composant le Cercle 2 , la Commission rappelle qu’une attention particulière devra être portée aux conséquences liées à l’invalidité d’un titre, qui devront dès lors être encadrées par la convention conclue entre l’organisme concerné et le responsable de traitement et ce, afin de limiter les effets défavorables qui en résulteraient pour les personnes concernées.
Enfin, la Commission relève que le ministère a indiqué qu’une phase pilote concernant ces utilisateurs sera mise en œuvre dans un premier temps, permettant ainsi d’expérimenter le dispositif par une dizaine d’organismes, et ce, avant que le dispositif pérenne soit déployé. Elle demande à cet égard à être destinataire du bilan qui sera établi à l’issue de cette première phase. Par ailleurs, elle prend acte qu’une convention type lui sera transmise par le ministère dans ce même délai, soit à l’issue de la phase pilote.
Sur l’interconnexion avec le traitement ALICEM :
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Délibération 2018-324 du 11 octobre 2018
Dans ce contexte, la Commission rappelle qu’une vigilance particulière s’impose en matière de mise à jour des données, compte tenu des conséquences importantes qu’emporteraient, pour les personnes contrôlées, d’éventuelles erreurs sur le statut du document présenté à l’occasion d’un contrôle. Elle prend à cet égard acte de ce que l’alimentation du traitement DOCVERIF est quotidienne. Au regard notamment du caractère particulièrement hétérogène des organismes composant le Cercle 2 , la Commission rappelle qu’une attention particulière devra être portée aux conséquences liées à l’invalidité d’un titre, qui devront dès lors être encadrées par la convention conclue entre l’organisme concerné et le responsable de traitement et ce, afin de limiter les effets défavorables qui en résulteraient pour les personnes concernées.
Enfin, la Commission relève que le ministère a indiqué qu’une phase pilote concernant ces utilisateurs sera mise en œuvre dans un premier temps, permettant ainsi d’expérimenter le dispositif par une dizaine d’organismes, et ce, avant que le dispositif pérenne soit déployé. Elle demande à cet égard à être destinataire du bilan qui sera établi à l’issue de cette première phase. Par ailleurs, elle prend acte qu’une convention type lui sera transmise par le ministère dans ce même délai, soit à l’issue de la phase pilote.
Sur l’interconnexion avec le traitement ALICEM :
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CNILTEXT000038131876_16
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CNILTEXT000038131876
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2018-324 du 11 octobre 2018
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Délibération n° 2018-324 du 11 octobre 2018 portant avis sur un projet d’arrêté modifiant l’arrêté autorisant la création d’un traitement automatisé de données à caractère personnel dénommé « DOCVERIF » (demande d’avis n° 18013763)
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2018-324
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2018-10-11
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Un système de d’import et de purge, automatique et quotidien, est mis en œuvre, permettant d’assurer que les informations du traitement DOCVERIF sont bien à jour.
La Commission prend acte que le réseau sur lequel repose le traitement fait l’objet de mesure de filtrage ayant pour but de restreindre l’émission et la réception des flux aux machines identifiées et autorisées. Les accès distants sont sécurisés via un VPN chiffré.
Elle prend également acte qu’un algorithme à l’état de l’art (AES 256 bits) est utilisé pour le chiffrement des données en base active ainsi que pour les données sauvegardées.
Des sauvegardes quotidiennes sont réalisées et sont stockées dans un endroit garantissant leur sécurité et leur disponibilité.
La Commission estime que les mesures de sécurité décrites par le responsable de traitement sont conformes aux exigences de sécurité prévue par l’article 70-13 de la loi du 6 janvier 1978 modifiée. La Commission rappelle toutefois que cette obligation nécessite la mise à jour des mesures de sécurité au regard de la réévaluation régulière des risques.
Pour la Présidente
Le Vice-Président délégué
Marie-France MAZARS
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Délibération 2018-324 du 11 octobre 2018
Un système de d’import et de purge, automatique et quotidien, est mis en œuvre, permettant d’assurer que les informations du traitement DOCVERIF sont bien à jour.
La Commission prend acte que le réseau sur lequel repose le traitement fait l’objet de mesure de filtrage ayant pour but de restreindre l’émission et la réception des flux aux machines identifiées et autorisées. Les accès distants sont sécurisés via un VPN chiffré.
Elle prend également acte qu’un algorithme à l’état de l’art (AES 256 bits) est utilisé pour le chiffrement des données en base active ainsi que pour les données sauvegardées.
Des sauvegardes quotidiennes sont réalisées et sont stockées dans un endroit garantissant leur sécurité et leur disponibilité.
La Commission estime que les mesures de sécurité décrites par le responsable de traitement sont conformes aux exigences de sécurité prévue par l’article 70-13 de la loi du 6 janvier 1978 modifiée. La Commission rappelle toutefois que cette obligation nécessite la mise à jour des mesures de sécurité au regard de la réévaluation régulière des risques.
Pour la Présidente
Le Vice-Président délégué
Marie-France MAZARS
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CNILTEXT000038131876_11
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CNILTEXT000038131876
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2018-324 du 11 octobre 2018
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Délibération n° 2018-324 du 11 octobre 2018 portant avis sur un projet d’arrêté modifiant l’arrêté autorisant la création d’un traitement automatisé de données à caractère personnel dénommé « DOCVERIF » (demande d’avis n° 18013763)
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2018-324
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2018-10-11
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Sur l’interconnexion avec le traitement ALICEM :
L’article 8 du projet d’arrêté prévoit une mise en relation du traitement DOCVERIF avec le traitement automatisé dénommé Application de Lecture d’Identité d’un Citoyen En Mobilité ( ALICEM ), faisant l’objet d’une saisine distincte.
La Commission prend acte que le traitement précité a pour objet de délivrer des identités numériques à partir de passeports biométriques ou des titres de séjour étrangers électroniques biométriques. A cet égard, le ministère a indiqué qu’au moment de l’inscription d’un usager dans l’application ALICEM et lors de chaque demande d’identification numérique, le traitement DOCEVRIF sera interrogé afin de s’assurer de la validité des titres permettant la délivrance de l’identité numérique.
La Commission estime, au regard des finalités poursuivies par ces deux traitements, que cette mise en relation n’appelle pas d’observation.
Sur les autres modifications du traitement :
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Délibération 2018-324 du 11 octobre 2018
Sur l’interconnexion avec le traitement ALICEM :
L’article 8 du projet d’arrêté prévoit une mise en relation du traitement DOCVERIF avec le traitement automatisé dénommé Application de Lecture d’Identité d’un Citoyen En Mobilité ( ALICEM ), faisant l’objet d’une saisine distincte.
La Commission prend acte que le traitement précité a pour objet de délivrer des identités numériques à partir de passeports biométriques ou des titres de séjour étrangers électroniques biométriques. A cet égard, le ministère a indiqué qu’au moment de l’inscription d’un usager dans l’application ALICEM et lors de chaque demande d’identification numérique, le traitement DOCEVRIF sera interrogé afin de s’assurer de la validité des titres permettant la délivrance de l’identité numérique.
La Commission estime, au regard des finalités poursuivies par ces deux traitements, que cette mise en relation n’appelle pas d’observation.
Sur les autres modifications du traitement :
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CNILTEXT000038131876_12
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CNILTEXT000038131876
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2018-324 du 11 octobre 2018
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Délibération n° 2018-324 du 11 octobre 2018 portant avis sur un projet d’arrêté modifiant l’arrêté autorisant la création d’un traitement automatisé de données à caractère personnel dénommé « DOCVERIF » (demande d’avis n° 18013763)
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2018-324
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2018-10-11
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La Commission estime, au regard des finalités poursuivies par ces deux traitements, que cette mise en relation n’appelle pas d’observation.
Sur les autres modifications du traitement :
En premier lieu, l’article 7 du projet d’arrêté prévoit la collecte des données de traçabilité. A cet égard, les opérations de collecte, de consultation et communication font l’objet d’un enregistrement permettant d’établir la date et l’heure de celles-ci ainsi que, pour les opérations de consultation et de communication, l’identification de l’auteur, le type et le numéro du titre interrogé, le résultat de l’interrogation et le mode de connexion . Ces données sont conservées pour une durée d’un an, ce qui n’appelle pas d’observation de la Commission.
En deuxième lieu, l’article 11 de l’arrêté précité vise à modifier les droits de personnes concernées, au regard des dispositions du chapitre XIII de la loi du 6 janvier 1978 modifiée. Il prévoit à cet égard que les droits d’information, d’accès, de rectification et d’effacement, prévus à l’article 70-18 à 70-20 de la loi précitée s’exercent auprès du secrétaire général du ministère de l’intérieur, ce qui n’appelle pas d’observation particulière.
Enfin, le projet d’arrêté précise qu’en application de l’article 38 de la loi du 6 janvier 1978 modifiée, le droit d’opposition ne s’applique pas au traitement projeté.
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Délibération 2018-324 du 11 octobre 2018
La Commission estime, au regard des finalités poursuivies par ces deux traitements, que cette mise en relation n’appelle pas d’observation.
Sur les autres modifications du traitement :
En premier lieu, l’article 7 du projet d’arrêté prévoit la collecte des données de traçabilité. A cet égard, les opérations de collecte, de consultation et communication font l’objet d’un enregistrement permettant d’établir la date et l’heure de celles-ci ainsi que, pour les opérations de consultation et de communication, l’identification de l’auteur, le type et le numéro du titre interrogé, le résultat de l’interrogation et le mode de connexion . Ces données sont conservées pour une durée d’un an, ce qui n’appelle pas d’observation de la Commission.
En deuxième lieu, l’article 11 de l’arrêté précité vise à modifier les droits de personnes concernées, au regard des dispositions du chapitre XIII de la loi du 6 janvier 1978 modifiée. Il prévoit à cet égard que les droits d’information, d’accès, de rectification et d’effacement, prévus à l’article 70-18 à 70-20 de la loi précitée s’exercent auprès du secrétaire général du ministère de l’intérieur, ce qui n’appelle pas d’observation particulière.
Enfin, le projet d’arrêté précise qu’en application de l’article 38 de la loi du 6 janvier 1978 modifiée, le droit d’opposition ne s’applique pas au traitement projeté.
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CNILTEXT000038131876_13
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CNILTEXT000038131876
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2018-324 du 11 octobre 2018
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Délibération n° 2018-324 du 11 octobre 2018 portant avis sur un projet d’arrêté modifiant l’arrêté autorisant la création d’un traitement automatisé de données à caractère personnel dénommé « DOCVERIF » (demande d’avis n° 18013763)
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2018-324
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2018-10-11
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Enfin, le projet d’arrêté précise qu’en application de l’article 38 de la loi du 6 janvier 1978 modifiée, le droit d’opposition ne s’applique pas au traitement projeté.
La Commission rappelle que, si les dispositions de la directive 2016/680 du 27 avril 2016 susvisée telles que transposées en droit interne, ne mentionnent pas la possibilité pour les personnes concernées de s’opposer au traitement mis en œuvre, les Etats membres conservent, en tout état de cause, la possibilité de prévoir des garanties plus étendues que celles établies dans ladite directive pour la protection des droits et des libertés des personnes concernées à l’égard du traitement des données à caractère personnel par les autorités compétentes.
Dans ce contexte, elle considère que l’article 38 précité, qui n’a pas été abrogé par la loi relative à la protection des données personnelles et dont l’application aux traitements relevant de la directive précitée n’est pas davantage exclue par les dispositions des articles 70-1 et suivants de la loi Informatique et Libertés , a également vocation à s’appliquer aux traitements relevant du champ d’application de cette directive. Elle relève à cet égard que cet article 38 prévoit la possibilité d’écarter le droit d’opposition lorsque le traitement répond à une obligation légale ou lorsqu’une disposition expresse de l’acte réglementaire autorisant le traitement l’exclut.
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Délibération 2018-324 du 11 octobre 2018
Enfin, le projet d’arrêté précise qu’en application de l’article 38 de la loi du 6 janvier 1978 modifiée, le droit d’opposition ne s’applique pas au traitement projeté.
La Commission rappelle que, si les dispositions de la directive 2016/680 du 27 avril 2016 susvisée telles que transposées en droit interne, ne mentionnent pas la possibilité pour les personnes concernées de s’opposer au traitement mis en œuvre, les Etats membres conservent, en tout état de cause, la possibilité de prévoir des garanties plus étendues que celles établies dans ladite directive pour la protection des droits et des libertés des personnes concernées à l’égard du traitement des données à caractère personnel par les autorités compétentes.
Dans ce contexte, elle considère que l’article 38 précité, qui n’a pas été abrogé par la loi relative à la protection des données personnelles et dont l’application aux traitements relevant de la directive précitée n’est pas davantage exclue par les dispositions des articles 70-1 et suivants de la loi Informatique et Libertés , a également vocation à s’appliquer aux traitements relevant du champ d’application de cette directive. Elle relève à cet égard que cet article 38 prévoit la possibilité d’écarter le droit d’opposition lorsque le traitement répond à une obligation légale ou lorsqu’une disposition expresse de l’acte réglementaire autorisant le traitement l’exclut.
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CNILTEXT000038131876_14
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CNILTEXT000038131876
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2018-324 du 11 octobre 2018
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Délibération n° 2018-324 du 11 octobre 2018 portant avis sur un projet d’arrêté modifiant l’arrêté autorisant la création d’un traitement automatisé de données à caractère personnel dénommé « DOCVERIF » (demande d’avis n° 18013763)
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2018-324
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2018-10-11
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En l’espèce, la Commission considère que l’exclusion du droit d’opposition telle que prévue par l’article 8 du projet d’arrêté est proportionnée au regard de la finalité poursuivie par le traitement projeté, à savoir le contrôle de la validité des documents émis par les autorités françaises et la lutte contre l’utilisation indue de tels documents, leur falsification ou leur contrefaçon. Compte tenu de ce qui précède, elle estime que la limitation apportée à l’exercice du droit d’opposition s’inscrit dans le cadre des dispositions du droit national relatives à la protection des données à caractère personnel et n’est pas de nature à porter une atteinte excessive aux droits et libertés des personnes concernées.
Sur la sécurité des données et la traçabilité des actions :
La Commission observe que deux grandes catégories d’utilisateurs sont habilitées à accéder aux informations fournies par le traitement DOCVERIF : les utilisateurs du Cercle 1 et ceux du Cercle 2 .
Les modalités d’accès et de consultation par les utilisateurs du Cercle 1 , ne présentent pas de changements par rapport au traitement sur lequel elle s’était prononcée dans sa délibération n° 2016-218, ce qui n’appelle pas d’observation particulière. Concernant les accès par les utilisateurs du Cercle 2 , la Commission relève que ceux-ci sont donnés par l’Agence Nationale des Titres Sécurisés (ANTS) après qu’un enregistrement ait été réalisé.
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Délibération 2018-324 du 11 octobre 2018
En l’espèce, la Commission considère que l’exclusion du droit d’opposition telle que prévue par l’article 8 du projet d’arrêté est proportionnée au regard de la finalité poursuivie par le traitement projeté, à savoir le contrôle de la validité des documents émis par les autorités françaises et la lutte contre l’utilisation indue de tels documents, leur falsification ou leur contrefaçon. Compte tenu de ce qui précède, elle estime que la limitation apportée à l’exercice du droit d’opposition s’inscrit dans le cadre des dispositions du droit national relatives à la protection des données à caractère personnel et n’est pas de nature à porter une atteinte excessive aux droits et libertés des personnes concernées.
Sur la sécurité des données et la traçabilité des actions :
La Commission observe que deux grandes catégories d’utilisateurs sont habilitées à accéder aux informations fournies par le traitement DOCVERIF : les utilisateurs du Cercle 1 et ceux du Cercle 2 .
Les modalités d’accès et de consultation par les utilisateurs du Cercle 1 , ne présentent pas de changements par rapport au traitement sur lequel elle s’était prononcée dans sa délibération n° 2016-218, ce qui n’appelle pas d’observation particulière. Concernant les accès par les utilisateurs du Cercle 2 , la Commission relève que ceux-ci sont donnés par l’Agence Nationale des Titres Sécurisés (ANTS) après qu’un enregistrement ait été réalisé.
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CNILTEXT000038131876_15
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CNILTEXT000038131876
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2018-324 du 11 octobre 2018
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Délibération n° 2018-324 du 11 octobre 2018 portant avis sur un projet d’arrêté modifiant l’arrêté autorisant la création d’un traitement automatisé de données à caractère personnel dénommé « DOCVERIF » (demande d’avis n° 18013763)
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2018-324
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2018-10-11
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La Commission relève que la base de données à laquelle accèdent les utilisateurs du Cercle 2 est issue de la réplication partielle de la base DOCVERIF utilisée par les utilisateurs du Cercle 1 . La Commission observe que seuls les administrateurs du traitement seront en mesure de consulter les motifs d’invalidation des titres à des fins de contrôle, de diagnostic, de maintenance ou de traçabilité.
En pratique l’interrogation des bases DOCVERIF Cercle 1 et Cercle 2 est réalisée de façon à assurer l’authentification des destinataires, la confidentialité et l’intégrité des transmissions. Une gestion des habilitations permet d’attribuer les accès aux seules données nécessaires aux destinataires.
La Commission observe qu’une journalisation des opérations de consultation, création et modification des données est mise en place.
L’accès aux journaux est restreint aux seuls administrateurs du traitement. Afin de détecter tout usage abusif ou frauduleux, la Commission recommande de réaliser des contrôles réguliers des traces de manière automatique, afin de détecter les comportements anormaux et lever des alertes. A cet égard, elle prend acte de l’engagement du ministère d’étudier la possibilité de réaliser de tels contrôles, lesquels pourraient être mis en œuvre courant 2019.
Un système de d’import et de purge, automatique et quotidien, est mis en œuvre, permettant d’assurer que les informations du traitement DOCVERIF sont bien à jour.
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Délibération 2018-324 du 11 octobre 2018
La Commission relève que la base de données à laquelle accèdent les utilisateurs du Cercle 2 est issue de la réplication partielle de la base DOCVERIF utilisée par les utilisateurs du Cercle 1 . La Commission observe que seuls les administrateurs du traitement seront en mesure de consulter les motifs d’invalidation des titres à des fins de contrôle, de diagnostic, de maintenance ou de traçabilité.
En pratique l’interrogation des bases DOCVERIF Cercle 1 et Cercle 2 est réalisée de façon à assurer l’authentification des destinataires, la confidentialité et l’intégrité des transmissions. Une gestion des habilitations permet d’attribuer les accès aux seules données nécessaires aux destinataires.
La Commission observe qu’une journalisation des opérations de consultation, création et modification des données est mise en place.
L’accès aux journaux est restreint aux seuls administrateurs du traitement. Afin de détecter tout usage abusif ou frauduleux, la Commission recommande de réaliser des contrôles réguliers des traces de manière automatique, afin de détecter les comportements anormaux et lever des alertes. A cet égard, elle prend acte de l’engagement du ministère d’étudier la possibilité de réaliser de tels contrôles, lesquels pourraient être mis en œuvre courant 2019.
Un système de d’import et de purge, automatique et quotidien, est mis en œuvre, permettant d’assurer que les informations du traitement DOCVERIF sont bien à jour.
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CNILTEXT000038552658_0
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CNILTEXT000038552658
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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La Commission nationale de l’informatique et des libertés, réunie en sa formation restreinte composée de M. Alexandre LINDEN, président, M. Philippe-Pierre CABOURDIN, vice-président, Mme Sylvie LEMMET et Mme Christine MAUGÜE, membres ;
Vu la convention n° 108 du Conseil de l’Europe du 28 janvier 1981 pour la protection des personnes à l’égard du traitement automatisé des données à caractère personnel ;
Vu le règlement (UE) 2016/679 du Parlement européen et du Conseil du 27 avril 2016 relatif à la protection des données à caractère personnel et à la libre circulation de ces données ;
Vu la loi n° 78-17 du 6 janvier 1978 modifiée relative à l'informatique, aux fichiers et aux libertés, notamment ses articles 45 et suivants ;
Vu le décret n° 2005-1309 du 20 octobre 2005 modifié pris pour l'application de la loi
n° 78-17 du 6 janvier 1978 modifiée relative à l'informatique, aux fichiers et aux libertés ;
Vu la délibération n° 2013-175 du 4 juillet 2013 portant adoption du règlement intérieur de la Commission nationale de l'informatique et des libertés ;
Vu la décision n° 2018-186C du 5 septembre 2018 de la Présidente de la Commission nationale de l’informatique et des libertés de charger le secrétaire général de procéder ou de faire procéder à une mission de vérification ;
Vu la décision de la Présidente de la Commission nationale de l’informatique et des libertés portant désignation d’un rapporteur devant la formation restreinte, en date du 1er février 2019 ;
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Délibération SAN-2019-005 du 28 mai 2019
La Commission nationale de l’informatique et des libertés, réunie en sa formation restreinte composée de M. Alexandre LINDEN, président, M. Philippe-Pierre CABOURDIN, vice-président, Mme Sylvie LEMMET et Mme Christine MAUGÜE, membres ;
Vu la convention n° 108 du Conseil de l’Europe du 28 janvier 1981 pour la protection des personnes à l’égard du traitement automatisé des données à caractère personnel ;
Vu le règlement (UE) 2016/679 du Parlement européen et du Conseil du 27 avril 2016 relatif à la protection des données à caractère personnel et à la libre circulation de ces données ;
Vu la loi n° 78-17 du 6 janvier 1978 modifiée relative à l'informatique, aux fichiers et aux libertés, notamment ses articles 45 et suivants ;
Vu le décret n° 2005-1309 du 20 octobre 2005 modifié pris pour l'application de la loi
n° 78-17 du 6 janvier 1978 modifiée relative à l'informatique, aux fichiers et aux libertés ;
Vu la délibération n° 2013-175 du 4 juillet 2013 portant adoption du règlement intérieur de la Commission nationale de l'informatique et des libertés ;
Vu la décision n° 2018-186C du 5 septembre 2018 de la Présidente de la Commission nationale de l’informatique et des libertés de charger le secrétaire général de procéder ou de faire procéder à une mission de vérification ;
Vu la décision de la Présidente de la Commission nationale de l’informatique et des libertés portant désignation d’un rapporteur devant la formation restreinte, en date du 1er février 2019 ;
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CNILTEXT000038552658_1
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CNILTEXT000038552658
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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Vu la décision de la Présidente de la Commission nationale de l’informatique et des libertés portant désignation d’un rapporteur devant la formation restreinte, en date du 1er février 2019 ;
Vu le rapport de M. Éric PÉRÈS, commissaire rapporteur, du 4 février 2019 ;
Vu les observations écrites versées par la société X le 4 mars 2019 ;
Vu les observations en réponse du commissaire rapporteur du 15 mars 2019 ;
Vu les observations en réponse versées par la société X le 2 avril 2019 ainsi que les observations orales formulées lors de la séance de la formation restreinte ;
Vu les autres pièces du dossier ;
Étaient présents, lors de la séance de la formation restreinte du 11 avril 2019 :
M. Éric PÉRÈS, commissaire, entendu en son rapport ;
En qualité de représentants de la société X :
[…]
La société ayant eu la parole en dernier ;
Après en avoir délibéré, a adopté la décision suivante :
Faits et procédure
1.La société X (ci-après la société ) est spécialisée dans la promotion immobilière, l’achat, la vente, la location et la gestion immobilière. Elle emploie 486 personnes et a réalisé en 2017 un chiffre d’affaires d’environ 43 millions d’euros.
2.Pour les besoins de son activité, la société édite le site web www.[...].com (ci-après le site ) qui permet notamment aux candidats à la location d’un bien de télécharger les pièces justificatives nécessaires à la constitution de leur dossier.
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Délibération SAN-2019-005 du 28 mai 2019
Vu la décision de la Présidente de la Commission nationale de l’informatique et des libertés portant désignation d’un rapporteur devant la formation restreinte, en date du 1er février 2019 ;
Vu le rapport de M. Éric PÉRÈS, commissaire rapporteur, du 4 février 2019 ;
Vu les observations écrites versées par la société X le 4 mars 2019 ;
Vu les observations en réponse du commissaire rapporteur du 15 mars 2019 ;
Vu les observations en réponse versées par la société X le 2 avril 2019 ainsi que les observations orales formulées lors de la séance de la formation restreinte ;
Vu les autres pièces du dossier ;
Étaient présents, lors de la séance de la formation restreinte du 11 avril 2019 :
M. Éric PÉRÈS, commissaire, entendu en son rapport ;
En qualité de représentants de la société X :
[…]
La société ayant eu la parole en dernier ;
Après en avoir délibéré, a adopté la décision suivante :
Faits et procédure
1.La société X (ci-après la société ) est spécialisée dans la promotion immobilière, l’achat, la vente, la location et la gestion immobilière. Elle emploie 486 personnes et a réalisé en 2017 un chiffre d’affaires d’environ 43 millions d’euros.
2.Pour les besoins de son activité, la société édite le site web www.[...].com (ci-après le site ) qui permet notamment aux candidats à la location d’un bien de télécharger les pièces justificatives nécessaires à la constitution de leur dossier.
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CNILTEXT000038552658_2
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CNILTEXT000038552658
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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3.Le 12 août 2018, la Commission nationale de l’informatique et des libertés (ci-après CNIL ou la Commission ) a été saisie d’une plainte d’un utilisateur du site. Le plaignant indiquait qu’une modification du caractère X dans l’adresse URL composée comme suit : https://www.crm.[...].com/documents/upload/eresa/X.pdf , où X représente un nombre entier, lui avait permis d’accéder aux pièces justificatives qu’il avait lui-même téléchargées via le site mais également à celles téléchargées par d’autres candidats à la location. Dans sa plainte, le plaignant a fourni plusieurs exemples d’ adresses URL à partir desquelles il a pu accéder à des pièces téléchargées par des tiers. Il a indiqué avoir informé la société de ces faits dès le mois de mars 2018.
4.En application de la décision n° 2018-186C du 5 septembre 2018 de la Présidente de la Commission, une mission de contrôle en ligne puis une mission de contrôle au sein des locaux de la société ont été effectuées respectivement les 7 et 13 septembre 2018. Ces missions ont eu pour objet de vérifier la conformité à la loi du 6 janvier 1978 modifiée (ci-après la loi Informatique et Libertés ) et au règlement (UE) 2016/679 du Parlement européen et du Conseil du 27 avril 2016 (ci-après RGPD ou le Règlement ) des traitements de données à caractère personnel accessibles à partir du domaine [...].com ou portant sur des données à caractère personnel collectées à partir de ce dernier.
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Délibération SAN-2019-005 du 28 mai 2019
3.Le 12 août 2018, la Commission nationale de l’informatique et des libertés (ci-après CNIL ou la Commission ) a été saisie d’une plainte d’un utilisateur du site. Le plaignant indiquait qu’une modification du caractère X dans l’adresse URL composée comme suit : https://www.crm.[...].com/documents/upload/eresa/X.pdf , où X représente un nombre entier, lui avait permis d’accéder aux pièces justificatives qu’il avait lui-même téléchargées via le site mais également à celles téléchargées par d’autres candidats à la location. Dans sa plainte, le plaignant a fourni plusieurs exemples d’ adresses URL à partir desquelles il a pu accéder à des pièces téléchargées par des tiers. Il a indiqué avoir informé la société de ces faits dès le mois de mars 2018.
4.En application de la décision n° 2018-186C du 5 septembre 2018 de la Présidente de la Commission, une mission de contrôle en ligne puis une mission de contrôle au sein des locaux de la société ont été effectuées respectivement les 7 et 13 septembre 2018. Ces missions ont eu pour objet de vérifier la conformité à la loi du 6 janvier 1978 modifiée (ci-après la loi Informatique et Libertés ) et au règlement (UE) 2016/679 du Parlement européen et du Conseil du 27 avril 2016 (ci-après RGPD ou le Règlement ) des traitements de données à caractère personnel accessibles à partir du domaine [...].com ou portant sur des données à caractère personnel collectées à partir de ce dernier.
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CNILTEXT000038552658_3
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CNILTEXT000038552658
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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5.Au cours de la mission de contrôle en ligne, la délégation a constaté que la saisie de l’une des adresses URL fournies par le plaignant permettait de télécharger un avis d’imposition établi à un nom différent du sien. La délégation a ensuite procédé au téléchargement de 9 446 documents au moyen d’un script, parmi lesquels des copies de cartes d’identité, de cartes Vitale, d’avis d’imposition, d’actes de décès, d’actes de mariage, d’attestations d’affiliation à la sécurité sociale, d’attestations délivrées par la caisse d’allocations familiales, d’attestations de pension d’invalidité, de jugements de divorce, de relevés de compte, de relevés d’identité bancaire et de quittances de loyers.
6.La société a été informée le 7 septembre, par la délégation, de l’existence d’un défaut de sécurité sur son site et un courrier électronique contenant le type d’adresses URL concernées par ce défaut de sécurité lui a été adressé.
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Délibération SAN-2019-005 du 28 mai 2019
5.Au cours de la mission de contrôle en ligne, la délégation a constaté que la saisie de l’une des adresses URL fournies par le plaignant permettait de télécharger un avis d’imposition établi à un nom différent du sien. La délégation a ensuite procédé au téléchargement de 9 446 documents au moyen d’un script, parmi lesquels des copies de cartes d’identité, de cartes Vitale, d’avis d’imposition, d’actes de décès, d’actes de mariage, d’attestations d’affiliation à la sécurité sociale, d’attestations délivrées par la caisse d’allocations familiales, d’attestations de pension d’invalidité, de jugements de divorce, de relevés de compte, de relevés d’identité bancaire et de quittances de loyers.
6.La société a été informée le 7 septembre, par la délégation, de l’existence d’un défaut de sécurité sur son site et un courrier électronique contenant le type d’adresses URL concernées par ce défaut de sécurité lui a été adressé.
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CNILTEXT000038552658_4
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CNILTEXT000038552658
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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Le 13 septembre 2018, au cours de la mission de contrôle dans les locaux de la société, la délégation de la CNIL a constaté que les adresses URL fournies par le plaignant dans sa saisine permettaient toujours d’accéder aux documents en question. La société a indiqué à la délégation que les pièces justificatives téléchargées par les candidats à la location sont enregistrées dans un répertoire dédié. Il a été précisé que l’ensemble du répertoire avait été rendu accessible par le défaut de sécurité. Il ressort des constatations effectuées que ce répertoire contenait 290 870 fichiers au jour du contrôle. La société a en outre indiqué que les documents fournis par les candidats ne faisaient l’objet d’aucune purge et qu’ils n’étaient pas réutilisés ultérieurement, les documents des candidats ayant accédé à la location étant déplacés dans un autre répertoire de la base de données.
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Délibération SAN-2019-005 du 28 mai 2019
Le 13 septembre 2018, au cours de la mission de contrôle dans les locaux de la société, la délégation de la CNIL a constaté que les adresses URL fournies par le plaignant dans sa saisine permettaient toujours d’accéder aux documents en question. La société a indiqué à la délégation que les pièces justificatives téléchargées par les candidats à la location sont enregistrées dans un répertoire dédié. Il a été précisé que l’ensemble du répertoire avait été rendu accessible par le défaut de sécurité. Il ressort des constatations effectuées que ce répertoire contenait 290 870 fichiers au jour du contrôle. La société a en outre indiqué que les documents fournis par les candidats ne faisaient l’objet d’aucune purge et qu’ils n’étaient pas réutilisés ultérieurement, les documents des candidats ayant accédé à la location étant déplacés dans un autre répertoire de la base de données.
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CNILTEXT000038552658_5
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CNILTEXT000038552658
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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8.La société a confirmé à la délégation qu’un signalement l’informant de ce que des documents étaient librement accessibles depuis le site, sans authentification préalable, lui était parvenu en mars 2018. Elle a précisé qu’à la suite de ce signalement, elle avait procédé à une première phase d’analyse du défaut de sécurité, qui a donné lieu à un plan d’action mis en œuvre à partir de juin 2018. Elle a également indiqué qu’une première action permettant de ne plus afficher les adresses URL telles qu’elles apparaissaient au moment de la violation avait été déployée quelques jours avant le contrôle du 13 septembre. La société a ensuite expliqué qu’une mesure mettant définitivement un terme au défaut de sécurité devait être mise en production le 17 septembre 2018. Les procès-verbaux des 7 et 13 septembre ont été notifiés à la société le 17 septembre.
9.Aux fins d’instruction de ces éléments, la Présidente de la CNIL a désigné, le 1er février 2019, M. Éric PÉRÈS en qualité de rapporteur sur le fondement de l’article 47 de la loi du 6 janvier 1978. Par courrier du 1er février 2019, la Présidente de la CNIL a informé la société de cette désignation.
10.A l’issue de son instruction, le rapporteur a fait notifier à la société X, le 5 février 2019, un rapport détaillant les manquements relatifs aux articles 5 et 32 du RGPD qu’il estimait constitués en l’espèce.
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Délibération SAN-2019-005 du 28 mai 2019
8.La société a confirmé à la délégation qu’un signalement l’informant de ce que des documents étaient librement accessibles depuis le site, sans authentification préalable, lui était parvenu en mars 2018. Elle a précisé qu’à la suite de ce signalement, elle avait procédé à une première phase d’analyse du défaut de sécurité, qui a donné lieu à un plan d’action mis en œuvre à partir de juin 2018. Elle a également indiqué qu’une première action permettant de ne plus afficher les adresses URL telles qu’elles apparaissaient au moment de la violation avait été déployée quelques jours avant le contrôle du 13 septembre. La société a ensuite expliqué qu’une mesure mettant définitivement un terme au défaut de sécurité devait être mise en production le 17 septembre 2018. Les procès-verbaux des 7 et 13 septembre ont été notifiés à la société le 17 septembre.
9.Aux fins d’instruction de ces éléments, la Présidente de la CNIL a désigné, le 1er février 2019, M. Éric PÉRÈS en qualité de rapporteur sur le fondement de l’article 47 de la loi du 6 janvier 1978. Par courrier du 1er février 2019, la Présidente de la CNIL a informé la société de cette désignation.
10.A l’issue de son instruction, le rapporteur a fait notifier à la société X, le 5 février 2019, un rapport détaillant les manquements relatifs aux articles 5 et 32 du RGPD qu’il estimait constitués en l’espèce.
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CNILTEXT000038552658_6
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CNILTEXT000038552658
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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11.Ce rapport proposait à la formation restreinte de la CNIL de prononcer à l’encontre de la société X une sanction pécuniaire de 900 000 euros et qui serait rendue publique.
12.Etait également jointe au rapport une convocation à la séance de la formation restreinte du 11 avril 2019. La société disposait d’un délai d’un mois pour communiquer ses observations écrites. Le 11 février 2019, la société a formulé une demande pour que la séance se tienne à huis-clos. Il a été fait droit à cette demande par courrier du 22 février 2019 dans la mesure où certains éléments versés aux débats sont protégés par le secret des affaires, tel que prévu par l’article L 151-1 du code du commerce.
13.Le 4 mars 2019, la société a produit des observations écrites sur le rapport. Ces observations ont fait l’objet d’une réponse du rapporteur le 15 mars 2019. Le 2 avril 2019, la société a produit de nouvelles observations en réponse à celles du rapporteur.
14.L’ensemble des observations ont été réitérées oralement par la société et le rapporteur lors de la séance de la formation restreinte du 11 avril 2019.
II.Motifs de la décision
Sur la demande de nullité des constatations en ligne du 7 septembre 2018
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Délibération SAN-2019-005 du 28 mai 2019
11.Ce rapport proposait à la formation restreinte de la CNIL de prononcer à l’encontre de la société X une sanction pécuniaire de 900 000 euros et qui serait rendue publique.
12.Etait également jointe au rapport une convocation à la séance de la formation restreinte du 11 avril 2019. La société disposait d’un délai d’un mois pour communiquer ses observations écrites. Le 11 février 2019, la société a formulé une demande pour que la séance se tienne à huis-clos. Il a été fait droit à cette demande par courrier du 22 février 2019 dans la mesure où certains éléments versés aux débats sont protégés par le secret des affaires, tel que prévu par l’article L 151-1 du code du commerce.
13.Le 4 mars 2019, la société a produit des observations écrites sur le rapport. Ces observations ont fait l’objet d’une réponse du rapporteur le 15 mars 2019. Le 2 avril 2019, la société a produit de nouvelles observations en réponse à celles du rapporteur.
14.L’ensemble des observations ont été réitérées oralement par la société et le rapporteur lors de la séance de la formation restreinte du 11 avril 2019.
II.Motifs de la décision
Sur la demande de nullité des constatations en ligne du 7 septembre 2018
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CNILTEXT000038552658_7
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CNILTEXT000038552658
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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II.Motifs de la décision
Sur la demande de nullité des constatations en ligne du 7 septembre 2018
15.La société fait valoir qu’au cours du contrôle en ligne du 7 septembre 2018, les agents de la CNIL ont procédé à l’extraction des fichiers accessibles depuis des adresses URL composées comme suit : https://www.crm.[...].com/documents/upload/eresa/X.pdf alors que les dispositions de l’article 44 de la loi Informatique et Libertés n’autorisent les agents de la CNIL qu’à consulter des données librement accessibles ou rendues accessibles et qu’elles ne rendent, en aucun cas, possible le maintien dans un système de traitement automatisé de données en vue d’extraire des données en procédant au téléchargement de celles-ci.
16.La société demande en conséquence à la formation restreinte de prononcer la nullité des constations contenues dans le procès-verbal n° 2018-186/1 du 7 septembre 2018.
17.La formation restreinte rappelle qu’aux termes de l’alinéa 3 du III de l’article 44 de la loi Informatique et Libertés , les agents de la Commission
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Délibération SAN-2019-005 du 28 mai 2019
II.Motifs de la décision
Sur la demande de nullité des constatations en ligne du 7 septembre 2018
15.La société fait valoir qu’au cours du contrôle en ligne du 7 septembre 2018, les agents de la CNIL ont procédé à l’extraction des fichiers accessibles depuis des adresses URL composées comme suit : https://www.crm.[...].com/documents/upload/eresa/X.pdf alors que les dispositions de l’article 44 de la loi Informatique et Libertés n’autorisent les agents de la CNIL qu’à consulter des données librement accessibles ou rendues accessibles et qu’elles ne rendent, en aucun cas, possible le maintien dans un système de traitement automatisé de données en vue d’extraire des données en procédant au téléchargement de celles-ci.
16.La société demande en conséquence à la formation restreinte de prononcer la nullité des constations contenues dans le procès-verbal n° 2018-186/1 du 7 septembre 2018.
17.La formation restreinte rappelle qu’aux termes de l’alinéa 3 du III de l’article 44 de la loi Informatique et Libertés , les agents de la Commission
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CNILTEXT000038552658_8
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CNILTEXT000038552658
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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17.La formation restreinte rappelle qu’aux termes de l’alinéa 3 du III de l’article 44 de la loi Informatique et Libertés , les agents de la Commission
peuvent notamment, à partir d'un service de communication au public en ligne, consulter les données librement accessibles ou rendues accessibles, y compris par imprudence, par négligence ou par le fait d'un tiers, le cas échéant en accédant et en se maintenant dans des systèmes de traitement automatisé de données le temps nécessaire aux constatations ; ils peuvent retranscrire les données par tout traitement approprié dans des documents directement utilisables pour les besoins du contrôle .
18.En téléchargeant les fichiers à partir des adresses URL susmentionnées, les agents de la CNIL ont bien procédé à une retranscription des données et non pas à une extraction, dans la mesure où les fichiers n’ont pas été déplacés de la base de données de la société mais ont simplement été copiés. La formation restreinte considère qu’en téléchargeant les fichiers rendus librement accessibles par le défaut de sécurité, les agents de la CNIL ont agi dans le strict respect des dispositions de l’article 44 précité, qui n’énumère au demeurant pas limitativement les formes que peuvent prendre les retranscriptions des agents habilités.
19.En conséquence, la demande de nullité sera rejetée.
Sur l’utilisation d’éléments issus de la réponse de la société Y
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Délibération SAN-2019-005 du 28 mai 2019
17.La formation restreinte rappelle qu’aux termes de l’alinéa 3 du III de l’article 44 de la loi Informatique et Libertés , les agents de la Commission
peuvent notamment, à partir d'un service de communication au public en ligne, consulter les données librement accessibles ou rendues accessibles, y compris par imprudence, par négligence ou par le fait d'un tiers, le cas échéant en accédant et en se maintenant dans des systèmes de traitement automatisé de données le temps nécessaire aux constatations ; ils peuvent retranscrire les données par tout traitement approprié dans des documents directement utilisables pour les besoins du contrôle .
18.En téléchargeant les fichiers à partir des adresses URL susmentionnées, les agents de la CNIL ont bien procédé à une retranscription des données et non pas à une extraction, dans la mesure où les fichiers n’ont pas été déplacés de la base de données de la société mais ont simplement été copiés. La formation restreinte considère qu’en téléchargeant les fichiers rendus librement accessibles par le défaut de sécurité, les agents de la CNIL ont agi dans le strict respect des dispositions de l’article 44 précité, qui n’énumère au demeurant pas limitativement les formes que peuvent prendre les retranscriptions des agents habilités.
19.En conséquence, la demande de nullité sera rejetée.
Sur l’utilisation d’éléments issus de la réponse de la société Y
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CNILTEXT000038552658_14
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CNILTEXT000038552658
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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31.La formation restreinte note tout d’abord que l’existence d’un défaut de sécurité sur le site www.[...].com n’est pas contestée par la société. Elle constate que ce défaut de sécurité a rendu possible la violation de données à caractère personnel dans la mesure où il a permis à des tiers non autorisés d’accéder à ces données.
32.La formation restreinte rappelle que lorsqu’une requête visant à accéder à une ressource est adressée à un serveur, celui-ci doit préalablement s’assurer que l’émetteur de cette requête est autorisé à accéder aux informations demandées. En l’espèce, tant le plaignant que la délégation de contrôle ont pu librement consulter les documents transmis à la société par un grand nombre de candidats à la location, sans qu’une mesure ne restreigne cette possibilité.
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Délibération SAN-2019-005 du 28 mai 2019
31.La formation restreinte note tout d’abord que l’existence d’un défaut de sécurité sur le site www.[...].com n’est pas contestée par la société. Elle constate que ce défaut de sécurité a rendu possible la violation de données à caractère personnel dans la mesure où il a permis à des tiers non autorisés d’accéder à ces données.
32.La formation restreinte rappelle que lorsqu’une requête visant à accéder à une ressource est adressée à un serveur, celui-ci doit préalablement s’assurer que l’émetteur de cette requête est autorisé à accéder aux informations demandées. En l’espèce, tant le plaignant que la délégation de contrôle ont pu librement consulter les documents transmis à la société par un grand nombre de candidats à la location, sans qu’une mesure ne restreigne cette possibilité.
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CNILTEXT000038552658_9
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CNILTEXT000038552658
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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19.En conséquence, la demande de nullité sera rejetée.
Sur l’utilisation d’éléments issus de la réponse de la société Y
20.La société note que dans le rapport notifié le 5 février 2019, le rapporteur a indiqué avoir tenu compte d’informations qui avaient été transmises par sa filiale, la société Y, personne morale distincte de la société X, dans le cadre d’une procédure de sanction préalablement ouverte à l’encontre de cette dernière. La société X fait valoir que ni le rapport, ni la réponse du rapporteur n’indiquent clairement quelles sont les informations fournies par la société Y sur lesquelles le rapporteur s’est appuyé dans le cadre de la présente procédure. La société indique ainsi ne pas savoir de quelle manière le rapporteur a tenu compte de ces éléments dans l’élaboration de sa proposition. Elle demande dès lors à la formation restreinte de statuer sur la seule base des observations et pièces qu’elle a fournies et d’exclure les informations fournies par la société Y.
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Délibération SAN-2019-005 du 28 mai 2019
19.En conséquence, la demande de nullité sera rejetée.
Sur l’utilisation d’éléments issus de la réponse de la société Y
20.La société note que dans le rapport notifié le 5 février 2019, le rapporteur a indiqué avoir tenu compte d’informations qui avaient été transmises par sa filiale, la société Y, personne morale distincte de la société X, dans le cadre d’une procédure de sanction préalablement ouverte à l’encontre de cette dernière. La société X fait valoir que ni le rapport, ni la réponse du rapporteur n’indiquent clairement quelles sont les informations fournies par la société Y sur lesquelles le rapporteur s’est appuyé dans le cadre de la présente procédure. La société indique ainsi ne pas savoir de quelle manière le rapporteur a tenu compte de ces éléments dans l’élaboration de sa proposition. Elle demande dès lors à la formation restreinte de statuer sur la seule base des observations et pièces qu’elle a fournies et d’exclure les informations fournies par la société Y.
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CNILTEXT000038552658_10
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CNILTEXT000038552658
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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La formation restreinte constate tout d’abord que, dans son rapport du 4 février 2019, le rapporteur a clairement fait état de ce qu’une première procédure de sanction avait été initiée à l’encontre de la société Y mais que les investigations menées dans le cadre de cette procédure avaient révélé que Y n’était pas le responsable de traitement auquel des manquements pouvaient être reprochés. La formation restreinte note qu’au demeurant, la procédure de sanction initiée à l’encontre de la société Y a été close le 31 janvier 2019.
22.La formation restreinte relève ensuite que, dans sa réponse aux observations de la société, le rapporteur a indiqué que les éléments dont il avait tenu compte pour établir son rapport étaient les informations relatives au fait que X avait procédé à la notification de la violation de données aux personnes concernées, au fait que le nombre de personnes concernées par la violation de données a été clarifié et au fait que les documents transmis par les candidats étaient conservés à des fins précontentieuses et contentieuses.
23.Elle considère que les indications données par le rapporteur permettaient à la société d’identifier sans ambiguïté les informations en question et les développements du rapport les comportant.
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Délibération SAN-2019-005 du 28 mai 2019
La formation restreinte constate tout d’abord que, dans son rapport du 4 février 2019, le rapporteur a clairement fait état de ce qu’une première procédure de sanction avait été initiée à l’encontre de la société Y mais que les investigations menées dans le cadre de cette procédure avaient révélé que Y n’était pas le responsable de traitement auquel des manquements pouvaient être reprochés. La formation restreinte note qu’au demeurant, la procédure de sanction initiée à l’encontre de la société Y a été close le 31 janvier 2019.
22.La formation restreinte relève ensuite que, dans sa réponse aux observations de la société, le rapporteur a indiqué que les éléments dont il avait tenu compte pour établir son rapport étaient les informations relatives au fait que X avait procédé à la notification de la violation de données aux personnes concernées, au fait que le nombre de personnes concernées par la violation de données a été clarifié et au fait que les documents transmis par les candidats étaient conservés à des fins précontentieuses et contentieuses.
23.Elle considère que les indications données par le rapporteur permettaient à la société d’identifier sans ambiguïté les informations en question et les développements du rapport les comportant.
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CNILTEXT000038552658_11
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CNILTEXT000038552658
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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23.Elle considère que les indications données par le rapporteur permettaient à la société d’identifier sans ambiguïté les informations en question et les développements du rapport les comportant.
24.Enfin, la formation restreinte souligne que l’ensemble des informations sur lesquelles le rapporteur a fondé sa proposition de sanction, quelle qu’en soit la source, ont été portées à la connaissance de la société X dans le cadre de la procédure et soumises à un débat contradictoire. Ce faisant, la société a eu connaissance de la prise en compte de ces informations et a été mise en mesure de remettre en cause l’exactitude des faits développés dans le rapport et d’en contester leur portée.
25.En conséquence, il convient de rejeter la demande de la société de ne pas prendre en considération les éléments issus de la procédure suivie contre la société Y.
3. Sur l’absence de mise en demeure préalable
26.La société argue que les manquements qui lui sont reprochés auraient pu être corrigés dans le cadre d’une mise en demeure. Elle estime donc que l’engagement immédiat d’une procédure de sanction, sans mise en demeure préalable, l’a privée de la possibilité de se mettre en conformité.
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Délibération SAN-2019-005 du 28 mai 2019
23.Elle considère que les indications données par le rapporteur permettaient à la société d’identifier sans ambiguïté les informations en question et les développements du rapport les comportant.
24.Enfin, la formation restreinte souligne que l’ensemble des informations sur lesquelles le rapporteur a fondé sa proposition de sanction, quelle qu’en soit la source, ont été portées à la connaissance de la société X dans le cadre de la procédure et soumises à un débat contradictoire. Ce faisant, la société a eu connaissance de la prise en compte de ces informations et a été mise en mesure de remettre en cause l’exactitude des faits développés dans le rapport et d’en contester leur portée.
25.En conséquence, il convient de rejeter la demande de la société de ne pas prendre en considération les éléments issus de la procédure suivie contre la société Y.
3. Sur l’absence de mise en demeure préalable
26.La société argue que les manquements qui lui sont reprochés auraient pu être corrigés dans le cadre d’une mise en demeure. Elle estime donc que l’engagement immédiat d’une procédure de sanction, sans mise en demeure préalable, l’a privée de la possibilité de se mettre en conformité.
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CNILTEXT000038552658_12
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CNILTEXT000038552658
| 12 |
DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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27.La formation restreinte relève qu’il résulte de la lettre même des dispositions du III de l’article 45 de la loi du 6 janvier 1978 modifiée, issues de la loi n° 2018-493 du 20 juin 2018 visant à mettre en conformité les dispositions législatives nationales avec celles du RGPD, que le prononcé d’une sanction n’est pas subordonné à l’adoption préalable d’une mise en demeure. La décision de désigner un rapporteur et de saisir la formation restreinte est un pouvoir appartenant au Président de la CNIL, qui dispose de l’opportunité des poursuites et peut donc
déterminer
, en fonction des circonstances de l’espèce, les suites à apporter à des investigations en clôturant
par exemple
un dossier, en prononçant une mise en demeure ou en saisissant la formation restreinte en vue du prononcé d’une ou plusieurs mesures correctrices.
4. Sur le manquement à l’obligation d’assurer la sécurité et la confidentialité des données à caractère personnel
a.Sur la caractérisation du manquement
28.L’article 32 (1) du Règlement dispose que : Compte tenu de l'état des connaissances, des coûts de mise en œuvre et de la nature, de la portée, du contexte et des finalités du traitement ainsi que des risques, dont le degré de probabilité et de gravité varie, pour les droits et libertés des personnes physiques, le responsable du traitement et le sous-traitant mettent en œuvre les mesures techniques et organisationnelles appropriées afin de garantir un niveau de sécurité adapté au risque y compris :
|
Délibération SAN-2019-005 du 28 mai 2019
27.La formation restreinte relève qu’il résulte de la lettre même des dispositions du III de l’article 45 de la loi du 6 janvier 1978 modifiée, issues de la loi n° 2018-493 du 20 juin 2018 visant à mettre en conformité les dispositions législatives nationales avec celles du RGPD, que le prononcé d’une sanction n’est pas subordonné à l’adoption préalable d’une mise en demeure. La décision de désigner un rapporteur et de saisir la formation restreinte est un pouvoir appartenant au Président de la CNIL, qui dispose de l’opportunité des poursuites et peut donc
déterminer
, en fonction des circonstances de l’espèce, les suites à apporter à des investigations en clôturant
par exemple
un dossier, en prononçant une mise en demeure ou en saisissant la formation restreinte en vue du prononcé d’une ou plusieurs mesures correctrices.
4. Sur le manquement à l’obligation d’assurer la sécurité et la confidentialité des données à caractère personnel
a.Sur la caractérisation du manquement
28.L’article 32 (1) du Règlement dispose que : Compte tenu de l'état des connaissances, des coûts de mise en œuvre et de la nature, de la portée, du contexte et des finalités du traitement ainsi que des risques, dont le degré de probabilité et de gravité varie, pour les droits et libertés des personnes physiques, le responsable du traitement et le sous-traitant mettent en œuvre les mesures techniques et organisationnelles appropriées afin de garantir un niveau de sécurité adapté au risque y compris :
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CNILTEXT000038552658_13
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CNILTEXT000038552658
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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la pseudonymisation et le chiffrement des données à caractère personnel ;
des moyens permettant de garantir la confidentialité, l'intégrité, la disponibilité et la résilience constantes des systèmes et des services de traitement ;
des moyens permettant de rétablir la disponibilité des données à caractère personnel et l'accès à celles-ci dans des délais appropriés en cas d'incident physique ou technique ;
une procédure visant à tester, à analyser et à évaluer régulièrement l'efficacité des mesures techniques et organisationnelles pour assurer la sécurité du traitement.
29.L’article 32 (2) prévoit que : Lors de l'évaluation du niveau de sécurité approprié, il est tenu compte en particulier des risques que présente le traitement, résultant notamment de la destruction, de la perte, de l'altération, de la divulgation non autorisée de données à caractère personnel transmises, conservées ou traitées d'une autre manière, ou de l'accès non autorisé à de telles données, de manière accidentelle ou illicite.
Il appartient à la formation restreinte de déterminer si la société X a manqué à son obligation d’assurer la sécurité des données personnelles traitées et si, en particulier, la société a mis en œuvre des moyens permettant de garantir leur confidentialité, afin d’empêcher qu’elles soient accessibles à des tiers non autorisés, conformément à l’article 32 (1) ii précité.
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Délibération SAN-2019-005 du 28 mai 2019
la pseudonymisation et le chiffrement des données à caractère personnel ;
des moyens permettant de garantir la confidentialité, l'intégrité, la disponibilité et la résilience constantes des systèmes et des services de traitement ;
des moyens permettant de rétablir la disponibilité des données à caractère personnel et l'accès à celles-ci dans des délais appropriés en cas d'incident physique ou technique ;
une procédure visant à tester, à analyser et à évaluer régulièrement l'efficacité des mesures techniques et organisationnelles pour assurer la sécurité du traitement.
29.L’article 32 (2) prévoit que : Lors de l'évaluation du niveau de sécurité approprié, il est tenu compte en particulier des risques que présente le traitement, résultant notamment de la destruction, de la perte, de l'altération, de la divulgation non autorisée de données à caractère personnel transmises, conservées ou traitées d'une autre manière, ou de l'accès non autorisé à de telles données, de manière accidentelle ou illicite.
Il appartient à la formation restreinte de déterminer si la société X a manqué à son obligation d’assurer la sécurité des données personnelles traitées et si, en particulier, la société a mis en œuvre des moyens permettant de garantir leur confidentialité, afin d’empêcher qu’elles soient accessibles à des tiers non autorisés, conformément à l’article 32 (1) ii précité.
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CNILTEXT000043632207_4
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CNILTEXT000043632207
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DELIBERATION
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VIGUEUR
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Autre autorisation
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Délibération 2021-065 du 3 juin 2021
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Délibération n°2021-065 du 3 juin 2021 portant approbation du code de conduite européen porté par Cloud Infrastructure Service Providers Europe (CISPE)
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2021-065
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2021-06-03
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En cas de modification du code, la Commission, après en avoir été informée par le porteur du code, évaluera si une nouvelle procédure d’approbation est nécessaire, conformément aux dispositions de l’article 40.5 du RGPD.
La présente décision sera publiée sur Légifrance.
La Présidente
Marie Laure DENIS
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Délibération 2021-065 du 3 juin 2021
En cas de modification du code, la Commission, après en avoir été informée par le porteur du code, évaluera si une nouvelle procédure d’approbation est nécessaire, conformément aux dispositions de l’article 40.5 du RGPD.
La présente décision sera publiée sur Légifrance.
La Présidente
Marie Laure DENIS
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CNILTEXT000038552658_15
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CNILTEXT000038552658
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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33.Cet accès aux documents conservés par la société traduit une conception défectueuse du site, caractérisée en l’espèce par l’absence de mise en place d’une procédure d’authentification des utilisateurs. La violation de données résultant de ce défaut de sécurité aurait pu être évitée si, par exemple, la société avait mis en œuvre un moyen d’authentification permettant de s’assurer que les personnes accédant aux documents étaient bien celles à l’origine de leur téléchargement sur le répertoire en question, et que seules celles-ci pouvaient y accéder. La mise en place d’une telle fonctionnalité constitue une précaution d’usage essentielle, qui aurait permis de garantir la confidentialité des données personnelles traitées, conformément à l’article 32 (1) ii, et de réduire significativement le risque de survenance de cette violation de données.
La formation restreinte rappelle que l’exposition de données à caractère personnel sans contrôle d’accès préalable est identifiée comme faisant partie des vulnérabilités les plus répandues et qu’elle a déjà prononcé de nombreuses sanctions pécuniaires publiques pour des faits similaires.
35.Au regard de ces éléments, la formation restreinte considère que la société n’a pas mis en œuvre les mesures techniques et organisationnelles appropriées afin de garantir la sécurité des données personnelles traitées, conformément à l’article 32 du Règlement.
b.
Sur la portée du manquement
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Délibération SAN-2019-005 du 28 mai 2019
33.Cet accès aux documents conservés par la société traduit une conception défectueuse du site, caractérisée en l’espèce par l’absence de mise en place d’une procédure d’authentification des utilisateurs. La violation de données résultant de ce défaut de sécurité aurait pu être évitée si, par exemple, la société avait mis en œuvre un moyen d’authentification permettant de s’assurer que les personnes accédant aux documents étaient bien celles à l’origine de leur téléchargement sur le répertoire en question, et que seules celles-ci pouvaient y accéder. La mise en place d’une telle fonctionnalité constitue une précaution d’usage essentielle, qui aurait permis de garantir la confidentialité des données personnelles traitées, conformément à l’article 32 (1) ii, et de réduire significativement le risque de survenance de cette violation de données.
La formation restreinte rappelle que l’exposition de données à caractère personnel sans contrôle d’accès préalable est identifiée comme faisant partie des vulnérabilités les plus répandues et qu’elle a déjà prononcé de nombreuses sanctions pécuniaires publiques pour des faits similaires.
35.Au regard de ces éléments, la formation restreinte considère que la société n’a pas mis en œuvre les mesures techniques et organisationnelles appropriées afin de garantir la sécurité des données personnelles traitées, conformément à l’article 32 du Règlement.
b.
Sur la portée du manquement
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CNILTEXT000038552658_16
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CNILTEXT000038552658
| 16 |
DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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b.
Sur la portée du manquement
36.La société souligne que l’exploitation de la vulnérabilité nécessitait des compétences particulières, comme le prouve l’utilisation d’un script par la délégation de contrôle, et qu’elle n’était possible qu’en ayant connaissance de l’adresse URL
https://www.crm.[...].com/documents/upload/eresa/X.pdf . La société relève par ailleurs que l’ensemble des documents contenus au sein du répertoire n’auraient pas pu être téléchargés par la délégation de contrôle. Elle fait également valoir qu’aucun utilisateur du site ne lui a rapporté que ses données personnelles avaient fait l’objet d’une utilisation malveillante.
37.La société souligne ensuite que chacun des documents fournis par les candidats à la location est nécessaire pour la constitution du dossier, notamment pour évaluer leur solvabilité, et qu’elle ne demande aux candidats aucune autre pièce que celles visées par le décret n° 2015-1437 du 5 novembre 2015 fixant la liste des pièces justificatives pouvant être demandées au candidat à la location et à sa caution.
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Délibération SAN-2019-005 du 28 mai 2019
b.
Sur la portée du manquement
36.La société souligne que l’exploitation de la vulnérabilité nécessitait des compétences particulières, comme le prouve l’utilisation d’un script par la délégation de contrôle, et qu’elle n’était possible qu’en ayant connaissance de l’adresse URL
https://www.crm.[...].com/documents/upload/eresa/X.pdf . La société relève par ailleurs que l’ensemble des documents contenus au sein du répertoire n’auraient pas pu être téléchargés par la délégation de contrôle. Elle fait également valoir qu’aucun utilisateur du site ne lui a rapporté que ses données personnelles avaient fait l’objet d’une utilisation malveillante.
37.La société souligne ensuite que chacun des documents fournis par les candidats à la location est nécessaire pour la constitution du dossier, notamment pour évaluer leur solvabilité, et qu’elle ne demande aux candidats aucune autre pièce que celles visées par le décret n° 2015-1437 du 5 novembre 2015 fixant la liste des pièces justificatives pouvant être demandées au candidat à la location et à sa caution.
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CNILTEXT000038552658_17
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CNILTEXT000038552658
| 17 |
DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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38.Elle rappelle en outre qu’elle n’a pas la maîtrise des pièces spontanément téléchargées par les candidats alors qu’elles ne figurent pas dans le décret précité. De la même façon, la société estime qu’elle ne peut être tenue pour responsable du fait que certains candidats téléchargent leur carte Vitale en tant que justificatif d’identité ou que le numéro d’inscription au répertoire (NIR) figure sur des documents émis par des organismes sociaux que transmettent les personnes.
39.Enfin, la société explique qu’à la suite de la violation de données, elle a planifié la correction de la vulnérabilité sur plusieurs mois, ce qui a abouti à la mise en production le 17 septembre 2018 d’un correctif permettant de mettre définitivement un terme à la vulnérabilité. La société précise que ces délais s’expliquent par la forte demande de locations en période estivale et par la difficulté de suspendre ses activités durant cette période.
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Délibération SAN-2019-005 du 28 mai 2019
38.Elle rappelle en outre qu’elle n’a pas la maîtrise des pièces spontanément téléchargées par les candidats alors qu’elles ne figurent pas dans le décret précité. De la même façon, la société estime qu’elle ne peut être tenue pour responsable du fait que certains candidats téléchargent leur carte Vitale en tant que justificatif d’identité ou que le numéro d’inscription au répertoire (NIR) figure sur des documents émis par des organismes sociaux que transmettent les personnes.
39.Enfin, la société explique qu’à la suite de la violation de données, elle a planifié la correction de la vulnérabilité sur plusieurs mois, ce qui a abouti à la mise en production le 17 septembre 2018 d’un correctif permettant de mettre définitivement un terme à la vulnérabilité. La société précise que ces délais s’expliquent par la forte demande de locations en période estivale et par la difficulté de suspendre ses activités durant cette période.
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CNILTEXT000038552658_18
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CNILTEXT000038552658
| 18 |
DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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40.En premier lieu, la formation restreinte observe que l’exploitation de la vulnérabilité ne requérait pas de maîtrise technique particulière en matière informatique. En effet, la simple modification de la valeur de X dans l’adresse URL https://www.crm.[...].com/documents/upload/eresa/X.pdf permettait à toute personne ayant connaissance de l’URL précitée de télécharger les documents en question, sans que la création préalable d’un compte sur le site soit nécessaire, et sans que cela requière une manipulation plus compliquée que la simple modification de la valeur X , qui correspond à un nombre. Par ailleurs, la formation restreinte considère que l’utilisation d’un script ne nécessite aucunement de posséder des compétences avancées pour exploiter cette vulnérabilité. L’utilisation d’un script par la délégation de contrôle avait pour unique objectif d’automatiser un processus manuel consistant à modifier la valeur de X à la fin de l’adresse URL en question, pour télécharger les documents les uns après les autres de manière plus rapide.
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Délibération SAN-2019-005 du 28 mai 2019
40.En premier lieu, la formation restreinte observe que l’exploitation de la vulnérabilité ne requérait pas de maîtrise technique particulière en matière informatique. En effet, la simple modification de la valeur de X dans l’adresse URL https://www.crm.[...].com/documents/upload/eresa/X.pdf permettait à toute personne ayant connaissance de l’URL précitée de télécharger les documents en question, sans que la création préalable d’un compte sur le site soit nécessaire, et sans que cela requière une manipulation plus compliquée que la simple modification de la valeur X , qui correspond à un nombre. Par ailleurs, la formation restreinte considère que l’utilisation d’un script ne nécessite aucunement de posséder des compétences avancées pour exploiter cette vulnérabilité. L’utilisation d’un script par la délégation de contrôle avait pour unique objectif d’automatiser un processus manuel consistant à modifier la valeur de X à la fin de l’adresse URL en question, pour télécharger les documents les uns après les autres de manière plus rapide.
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CNILTEXT000038552658_19
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CNILTEXT000038552658
| 19 |
DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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41.En deuxième lieu, s’agissant du nombre de fichiers concernés par le défaut de sécurité, la formation restreinte observe que c’est la délégation de la CNIL qui a, de sa propre initiative, interrompu l'exécution du script afin de ne pas surcharger le serveur hébergeant le site web. Il ressort ensuite des informations transmises par la société à la délégation au cours du contrôle du 13 septembre 2018, et des constatations effectuées, que l’intégralité des documents contenus dans le répertoire en question, soit 290 870 fichiers, ont été rendus accessibles par ce défaut de sécurité. Les fichiers qui d’après la société n’auraient pu être téléchargés correspondaient à des numérotations auxquelles n’étaient pas rattachés de dossiers comme la société en a convenu à l’audience. La formation relève que, dans ses observations, la société a en outre indiqué que le nombre de personnes concernées était de 29 440.
42.En
troisième
|
Délibération SAN-2019-005 du 28 mai 2019
41.En deuxième lieu, s’agissant du nombre de fichiers concernés par le défaut de sécurité, la formation restreinte observe que c’est la délégation de la CNIL qui a, de sa propre initiative, interrompu l'exécution du script afin de ne pas surcharger le serveur hébergeant le site web. Il ressort ensuite des informations transmises par la société à la délégation au cours du contrôle du 13 septembre 2018, et des constatations effectuées, que l’intégralité des documents contenus dans le répertoire en question, soit 290 870 fichiers, ont été rendus accessibles par ce défaut de sécurité. Les fichiers qui d’après la société n’auraient pu être téléchargés correspondaient à des numérotations auxquelles n’étaient pas rattachés de dossiers comme la société en a convenu à l’audience. La formation relève que, dans ses observations, la société a en outre indiqué que le nombre de personnes concernées était de 29 440.
42.En
troisième
|
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CNILTEXT000048778451_11
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CNILTEXT000048778451
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2017-269 du 5 octobre 2017
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Délibération n° 2017-269 du 5 octobre 2017 portant avis sur un projet d'arrêté portant création à la direction générale des finances publiques d'un traitement automatisé de données à caractère personnel de fiabilisation des états civils et de gestion des anomalies dans l'identification des usagers (demande d'avis n° 2057423)
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2017-269
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2017-10-05
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Pour la présidente :
Le vice-président délégué,
M.-F. Mazars
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Délibération 2017-269 du 5 octobre 2017
Pour la présidente :
Le vice-président délégué,
M.-F. Mazars
|
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CNILTEXT000038552658_20
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CNILTEXT000038552658
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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42.En
troisième
lieu, la formation restreinte estime que le manquement à l’obligation de sécurité est aggravé au regard de la nature des données à caractère personnel rendues accessibles. En effet, comme exposé précédemment, les documents transmis par les candidats à la location sont de nature très diverse et figuraient notamment, parmi les documents en question, des actes de mariage, des jugements de divorce, des contrats de travail, des documents relatifs à des prestations sociales ou encore des avis d’imposition. Ces documents contiennent à la fois des données d’identification, telles que le nom, le prénom et les coordonnées, mais également une grande quantité d’informations susceptibles de révéler certains aspects parmi les plus intimes de la vie des personnes, comme les jugements de divorce.
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Délibération SAN-2019-005 du 28 mai 2019
42.En
troisième
lieu, la formation restreinte estime que le manquement à l’obligation de sécurité est aggravé au regard de la nature des données à caractère personnel rendues accessibles. En effet, comme exposé précédemment, les documents transmis par les candidats à la location sont de nature très diverse et figuraient notamment, parmi les documents en question, des actes de mariage, des jugements de divorce, des contrats de travail, des documents relatifs à des prestations sociales ou encore des avis d’imposition. Ces documents contiennent à la fois des données d’identification, telles que le nom, le prénom et les coordonnées, mais également une grande quantité d’informations susceptibles de révéler certains aspects parmi les plus intimes de la vie des personnes, comme les jugements de divorce.
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CNILTEXT000038552658_21
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CNILTEXT000038552658
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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43.La formation restreinte ne remet pas en cause la nécessité pour la société X de disposer de la plupart de ces documents. Elle rappelle néanmoins que l’article 32 du Règlement impose au responsable de traitement de mettre en œuvre des mesures de sécurité adaptées aux risques induits par le traitement pour les droits et libertés des personnes, risques résultant notamment de l’accès non autorisé aux données personnelles traitées. En outre, dans la mesure où la société X traite des documents contenant des informations très précises sur certains aspects de la vie privée des personnes, la nécessité de mettre en place des mesures de sécurité proportionnées, permettant de garantir leur confidentialité, était d’autant plus importante. La formation restreinte rappelle sur ce point que le considérant 83 du Règlement prévoit que […] Ces mesures devraient assurer un niveau de sécurité approprié, y compris la confidentialité, compte tenu de l'état des connaissances et des coûts de mise en œuvre par rapport aux risques et à la nature des données à caractère personnel à protéger.
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Délibération SAN-2019-005 du 28 mai 2019
43.La formation restreinte ne remet pas en cause la nécessité pour la société X de disposer de la plupart de ces documents. Elle rappelle néanmoins que l’article 32 du Règlement impose au responsable de traitement de mettre en œuvre des mesures de sécurité adaptées aux risques induits par le traitement pour les droits et libertés des personnes, risques résultant notamment de l’accès non autorisé aux données personnelles traitées. En outre, dans la mesure où la société X traite des documents contenant des informations très précises sur certains aspects de la vie privée des personnes, la nécessité de mettre en place des mesures de sécurité proportionnées, permettant de garantir leur confidentialité, était d’autant plus importante. La formation restreinte rappelle sur ce point que le considérant 83 du Règlement prévoit que […] Ces mesures devraient assurer un niveau de sécurité approprié, y compris la confidentialité, compte tenu de l'état des connaissances et des coûts de mise en œuvre par rapport aux risques et à la nature des données à caractère personnel à protéger.
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CNILTEXT000038552658_22
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CNILTEXT000038552658
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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44.En dernier lieu, la formation restreinte note que l’existence de la vulnérabilité sur le site www.[...].com a été portée à la connaissance de la société dès le 8 mars 2018 et n’a été résolue qu’en septembre 2018. Les données personnelles des utilisateurs ont donc été accessibles durant au moins six mois alors même que la société X en avait connaissance. Si la formation restreinte admet que la correction de la vulnérabilité pouvait nécessiter des phases d’analyse et de développements techniques, elle estime que des mesures d’urgence n’ayant pas pour objectif de corriger la vulnérabilité mais de réduire l’ampleur de la violation de données étaient techniquement simples à mettre en place et auraient pu être rapidement déployées. Par exemple, les fichiers contenus dans le répertoire rendu accessible par la vulnérabilité auraient pu être déplacés vers un répertoire temporaire ou bien une meure de filtrage des URL aurait pu être mise en œuvre pour empêcher l’accès aux documents. De surcroît, il apparaît que la société, consciente de l’augmentation de ses activités à partir du mois de mai, en raison de la forte demande de locations, a fait le choix de privilégier la stabilité de son système d’information durant cette période à la correction de la vulnérabilité des données personnelles qu’il comportait. Par conséquent, dans la mesure où le défaut de sécurité a été porté à sa connaissance dès le 8 mars 2018, et où la société savait qu’un pic d’activités interviendrait à partir du
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Délibération SAN-2019-005 du 28 mai 2019
44.En dernier lieu, la formation restreinte note que l’existence de la vulnérabilité sur le site www.[...].com a été portée à la connaissance de la société dès le 8 mars 2018 et n’a été résolue qu’en septembre 2018. Les données personnelles des utilisateurs ont donc été accessibles durant au moins six mois alors même que la société X en avait connaissance. Si la formation restreinte admet que la correction de la vulnérabilité pouvait nécessiter des phases d’analyse et de développements techniques, elle estime que des mesures d’urgence n’ayant pas pour objectif de corriger la vulnérabilité mais de réduire l’ampleur de la violation de données étaient techniquement simples à mettre en place et auraient pu être rapidement déployées. Par exemple, les fichiers contenus dans le répertoire rendu accessible par la vulnérabilité auraient pu être déplacés vers un répertoire temporaire ou bien une meure de filtrage des URL aurait pu être mise en œuvre pour empêcher l’accès aux documents. De surcroît, il apparaît que la société, consciente de l’augmentation de ses activités à partir du mois de mai, en raison de la forte demande de locations, a fait le choix de privilégier la stabilité de son système d’information durant cette période à la correction de la vulnérabilité des données personnelles qu’il comportait. Par conséquent, dans la mesure où le défaut de sécurité a été porté à sa connaissance dès le 8 mars 2018, et où la société savait qu’un pic d’activités interviendrait à partir du
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CNILTEXT000038552658_23
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CNILTEXT000038552658
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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qu’il comportait. Par conséquent, dans la mesure où le défaut de sécurité a été porté à sa connaissance dès le 8 mars 2018, et où la société savait qu’un pic d’activités interviendrait à partir du mois de mai, il lui revenait d’anticiper cette difficulté et de prendre a minima toutes les mesures nécessaires dès la connaissance de cette vulnérabilité.
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Délibération SAN-2019-005 du 28 mai 2019
qu’il comportait. Par conséquent, dans la mesure où le défaut de sécurité a été porté à sa connaissance dès le 8 mars 2018, et où la société savait qu’un pic d’activités interviendrait à partir du mois de mai, il lui revenait d’anticiper cette difficulté et de prendre a minima toutes les mesures nécessaires dès la connaissance de cette vulnérabilité.
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CNILTEXT000038552658_24
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CNILTEXT000038552658
| 24 |
DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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5. Sur le manquement à l’obligation de conserver les données pour une durée proportionnée
45.L’article 5-1-e) du Règlement dispose que :
1. Les données à caractère personnel doivent être :
[…]
e) conservées sous une forme permettant l'identification des personnes concernées pendant une durée n'excédant pas celle nécessaire au regard des finalités pour lesquelles elles sont traitées ; les données à caractère personnel peuvent être conservées pour des durées plus longues dans la mesure où elles seront traitées exclusivement à des fins archivistiques dans l'intérêt public, à des fins de recherche scientifique ou historique ou à des fins statistiques conformément à l'article 89, paragraphe 1, pour autant que soient mises en œuvre les mesures techniques et organisationnelles appropriées requises par le présent Règlement afin de garantir les droits et libertés de la personne concernée (limitation de la conservation) .
46.Le rapporteur reproche à la société X de conserver les documents transmis par les candidats n’ayant pas accédé à la location au-delà de la durée nécessaire à l’atteinte de la finalité pour laquelle les données personnelles ont été collectées et traitées – à savoir la location d’un bien immobilier - et ce sans que cette conservation ne soit encadrée par des garanties appropriées.
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Délibération SAN-2019-005 du 28 mai 2019
5. Sur le manquement à l’obligation de conserver les données pour une durée proportionnée
45.L’article 5-1-e) du Règlement dispose que :
1. Les données à caractère personnel doivent être :
[…]
e) conservées sous une forme permettant l'identification des personnes concernées pendant une durée n'excédant pas celle nécessaire au regard des finalités pour lesquelles elles sont traitées ; les données à caractère personnel peuvent être conservées pour des durées plus longues dans la mesure où elles seront traitées exclusivement à des fins archivistiques dans l'intérêt public, à des fins de recherche scientifique ou historique ou à des fins statistiques conformément à l'article 89, paragraphe 1, pour autant que soient mises en œuvre les mesures techniques et organisationnelles appropriées requises par le présent Règlement afin de garantir les droits et libertés de la personne concernée (limitation de la conservation) .
46.Le rapporteur reproche à la société X de conserver les documents transmis par les candidats n’ayant pas accédé à la location au-delà de la durée nécessaire à l’atteinte de la finalité pour laquelle les données personnelles ont été collectées et traitées – à savoir la location d’un bien immobilier - et ce sans que cette conservation ne soit encadrée par des garanties appropriées.
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CNILTEXT000032367046_1
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CNILTEXT000032367046
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DELIBERATION
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VIGUEUR
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Autre autorisation
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DELIBERATION n°2016-052 du 25 février 2016
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Délibération n° 2016-052 du 25 février 2016 autorisant l’Institut français des sciences et des technologies des transports, de l’aménagement et des réseaux (IFSTTAR) à mettre en œuvre, à titre expérimental, un traitement automatisé de données à caractère personnel ayant pour finalité l’identification de mesures permettant d’améliorer la sécurité routière et de réduire l’impact des transports sur l’environnement, dans le cadre du projet UDRIVE, abrogeant la délibération n° 2015-157 du 28 mai 2015
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2016-052
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2016-02-25
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Sur la proposition de M. Eric PERES, commissaire, et après avoir entendu les observations de M. Jean-Alexandre SILVY, commissaire du Gouvernement,
Formule les observations suivantes :
L’Institut français des sciences et des technologies des transports, de l’aménagement et des réseaux (IFSTTAR) a saisi la Commission d’une demande d’autorisation pour son projet UDRIVE, une étude paneuropéenne, financée par la Commission européenne, qui consiste à observer pendant deux ans le comportement de conducteurs volontaires, en conditions réelles.
En France, cette expérimentation sera menée dans les départements du Rhône et de la Drôme et portera sur 30 véhicules.
Le projet UDRIVE a pour objectif principal d’identifier des mesures susceptibles d’améliorer la sécurité routière et de réduire l’impact des transports sur l’environnement à partir de l’exploitation de données acquises lors de la conduite d’un véhicule grâce à des enregistreurs de données embarqués.
Ce projet a été soumis à la Commission en application de l’article 25-I-3° de la loi du 6 janvier 1978 modifiée, en ce qu’il implique la collecte de données susceptibles de faire apparaître des infractions au code de la route (en particulier, il est prévu de collecter la vitesse instantanée des véhicules).
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DELIBERATION n°2016-052 du 25 février 2016
Sur la proposition de M. Eric PERES, commissaire, et après avoir entendu les observations de M. Jean-Alexandre SILVY, commissaire du Gouvernement,
Formule les observations suivantes :
L’Institut français des sciences et des technologies des transports, de l’aménagement et des réseaux (IFSTTAR) a saisi la Commission d’une demande d’autorisation pour son projet UDRIVE, une étude paneuropéenne, financée par la Commission européenne, qui consiste à observer pendant deux ans le comportement de conducteurs volontaires, en conditions réelles.
En France, cette expérimentation sera menée dans les départements du Rhône et de la Drôme et portera sur 30 véhicules.
Le projet UDRIVE a pour objectif principal d’identifier des mesures susceptibles d’améliorer la sécurité routière et de réduire l’impact des transports sur l’environnement à partir de l’exploitation de données acquises lors de la conduite d’un véhicule grâce à des enregistreurs de données embarqués.
Ce projet a été soumis à la Commission en application de l’article 25-I-3° de la loi du 6 janvier 1978 modifiée, en ce qu’il implique la collecte de données susceptibles de faire apparaître des infractions au code de la route (en particulier, il est prévu de collecter la vitesse instantanée des véhicules).
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CNILTEXT000038552658_25
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CNILTEXT000038552658
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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47.En défense, la société rappelle tout d’abord que ces personnes sont susceptibles de saisir le Défenseur des droits en alléguant d’une discrimination et, qu’à ce titre, le Défenseur des droits peut exiger de la société la transmission de l’ensemble du dossier déposé par le candidat. La société précise que le délai de prescription applicable à des faits de discrimination étant de six ans, les documents sont conservés pour cette durée. Elle ajoute que la délégation de contrôle n’a pas constaté la présence dans le répertoire affecté par la vulnérabilité de document antérieur à 2012. La société souligne dans ses écritures qu’aucune pièce du dossier ne prouve l’absence d’archivage intermédiaire des données et d’une gestion des habilitations d’accès aux documents.
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Délibération SAN-2019-005 du 28 mai 2019
47.En défense, la société rappelle tout d’abord que ces personnes sont susceptibles de saisir le Défenseur des droits en alléguant d’une discrimination et, qu’à ce titre, le Défenseur des droits peut exiger de la société la transmission de l’ensemble du dossier déposé par le candidat. La société précise que le délai de prescription applicable à des faits de discrimination étant de six ans, les documents sont conservés pour cette durée. Elle ajoute que la délégation de contrôle n’a pas constaté la présence dans le répertoire affecté par la vulnérabilité de document antérieur à 2012. La société souligne dans ses écritures qu’aucune pièce du dossier ne prouve l’absence d’archivage intermédiaire des données et d’une gestion des habilitations d’accès aux documents.
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CNILTEXT000038552658_26
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CNILTEXT000038552658
| 26 |
DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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48.La formation restreinte rappelle que la durée de conservation des données personnelles doit être déterminée en fonction de la finalité poursuivie par le traitement. Lorsque cette finalité est atteinte, les données doivent soit être supprimées, soit faire l’objet d’un archivage intermédiaire lorsque leur conservation est nécessaire pour le respect d’obligations légales ou à des fins précontentieuses ou contentieuses. Ces données doivent alors être placées en archivage intermédiaire, pour une durée n’excédant pas celle nécessaire aux finalités pour lesquelles elles sont conservées, conformément aux dispositions en vigueur. Ainsi, après avoir opéré un tri des données pertinentes à archiver, le responsable de traitement doit prévoir, à cet effet, une base de données d’archives dédiée ou une séparation logique dans la base de données active. Cette séparation logique est assurée par la mise en place de mesures techniques et organisationnelles garantissant que seules les personnes ayant un intérêt à traiter les données en raison de leurs fonctions, comme par exemple les personnes du service juridique, puissent y accéder. Au-delà de ces durées de conservation des données versées en archives intermédiaires, les données personnelles doivent être supprimées.
49.En l’espèce
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Délibération SAN-2019-005 du 28 mai 2019
48.La formation restreinte rappelle que la durée de conservation des données personnelles doit être déterminée en fonction de la finalité poursuivie par le traitement. Lorsque cette finalité est atteinte, les données doivent soit être supprimées, soit faire l’objet d’un archivage intermédiaire lorsque leur conservation est nécessaire pour le respect d’obligations légales ou à des fins précontentieuses ou contentieuses. Ces données doivent alors être placées en archivage intermédiaire, pour une durée n’excédant pas celle nécessaire aux finalités pour lesquelles elles sont conservées, conformément aux dispositions en vigueur. Ainsi, après avoir opéré un tri des données pertinentes à archiver, le responsable de traitement doit prévoir, à cet effet, une base de données d’archives dédiée ou une séparation logique dans la base de données active. Cette séparation logique est assurée par la mise en place de mesures techniques et organisationnelles garantissant que seules les personnes ayant un intérêt à traiter les données en raison de leurs fonctions, comme par exemple les personnes du service juridique, puissent y accéder. Au-delà de ces durées de conservation des données versées en archives intermédiaires, les données personnelles doivent être supprimées.
49.En l’espèce
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CNILTEXT000038552658_27
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CNILTEXT000038552658
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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49.En l’espèce
, la formation restreinte rappelle que la collecte par la société X des données personnelles des candidats a pour finalité l’attribution de logements. Dès lors que cette finalité est atteinte, les données personnelles des candidats n’ayant pas accédé à la location ne peuvent plus être conservées au-delà de trois mois, au sein de la base de données active et au-delà faire l’objet d’une séparation logique voire d’un archivage intermédiaire.
50.Or, la formation restreinte observe que la société a indiqué à la délégation de la CNIL lors de la mission de contrôle du 13 septembre 2018 que les documents transmis par les candidats n’ayant pas accédé à la location, c’est-à-dire ceux pour lesquels la poursuite du traitement n’était plus justifiée, n’étaient pas supprimés et qu’aucune purge n’était mise en œuvre en base de données. Elle note encore que, dans ses observations en défense, la société a produit un document dont il ressort que sa politique en matière de conservation des données des clients et prospects n’a été formalisée qu’en novembre 2018. Enfin, au cours de la séance du 11 avril 2019, la société a indiqué que la mise en place d’une solution d’archivage des documents en question était en cours de réalisation.
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Délibération SAN-2019-005 du 28 mai 2019
49.En l’espèce
, la formation restreinte rappelle que la collecte par la société X des données personnelles des candidats a pour finalité l’attribution de logements. Dès lors que cette finalité est atteinte, les données personnelles des candidats n’ayant pas accédé à la location ne peuvent plus être conservées au-delà de trois mois, au sein de la base de données active et au-delà faire l’objet d’une séparation logique voire d’un archivage intermédiaire.
50.Or, la formation restreinte observe que la société a indiqué à la délégation de la CNIL lors de la mission de contrôle du 13 septembre 2018 que les documents transmis par les candidats n’ayant pas accédé à la location, c’est-à-dire ceux pour lesquels la poursuite du traitement n’était plus justifiée, n’étaient pas supprimés et qu’aucune purge n’était mise en œuvre en base de données. Elle note encore que, dans ses observations en défense, la société a produit un document dont il ressort que sa politique en matière de conservation des données des clients et prospects n’a été formalisée qu’en novembre 2018. Enfin, au cours de la séance du 11 avril 2019, la société a indiqué que la mise en place d’une solution d’archivage des documents en question était en cours de réalisation.
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CNILTEXT000038552658_28
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CNILTEXT000038552658
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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51.Il ressort de ces différents éléments que la société X conservait en base active les données à caractère personnel des candidats n’ayant pas accédé à la location pour une durée excédant dans des proportions importantes celle nécessaire à la réalisation de la finalité du traitement, à savoir l’attribution de logements, sans qu’aucune solution d’archivage intermédiaire n’ait été mise en place.
52.Au regard de l’ensemble de ces éléments, la formation restreinte considère qu’un manquement à l’obligation de conservation des données, telle que prévue par l’article 5 du Règlement, est caractérisé.
III.Sur la sanction et la publicité
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Délibération SAN-2019-005 du 28 mai 2019
51.Il ressort de ces différents éléments que la société X conservait en base active les données à caractère personnel des candidats n’ayant pas accédé à la location pour une durée excédant dans des proportions importantes celle nécessaire à la réalisation de la finalité du traitement, à savoir l’attribution de logements, sans qu’aucune solution d’archivage intermédiaire n’ait été mise en place.
52.Au regard de l’ensemble de ces éléments, la formation restreinte considère qu’un manquement à l’obligation de conservation des données, telle que prévue par l’article 5 du Règlement, est caractérisé.
III.Sur la sanction et la publicité
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CNILTEXT000038552658_29
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CNILTEXT000038552658
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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III.Sur la sanction et la publicité
L’article 45-III 7° de la loi du 6 janvier 1978 dispose : Lorsque le responsable de traitement ou son sous-traitant ne respecte pas les obligations résultant du Règlement (UE) 2016/679 du Parlement européen et du Conseil du 27 avril 2016 précité ou de la présente loi, le président de la Commission nationale de l’informatique et des libertés peut également, le cas échéant après lui avoir adressé l’avertissement prévu au I du présent article ou, le cas échéant en complément d’une mise en demeure prévue au II, saisir la formation restreinte de la commission en vue du prononcé, après procédure contradictoire, de l’une ou de plusieurs des mesures suivantes:[…] : 7° À l’exception des cas où le traitement est mis en œuvre par l’État, une amende administrative ne pouvant excéder 10 millions d’euros ou, s’agissant d’une entreprise, 2 % du chiffre d’affaires annuel mondial total de l’exercice précédent, le montant le plus élevé étant retenu. Dans les hypothèses mentionnées aux 5 et 6 de l’article 83 du Règlement (UE) 2016/679 du Parlement européen et du Conseil du 27 avril 2016 précité, ces plafonds sont portés, respectivement, à 20 millions d’euros et 4 % dudit chiffre d’affaires. La formation restreinte prend en compte, dans la détermination du montant de l’amende, les critères précisés au même article 83. L’article 83 du RGPD prévoit que
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Délibération SAN-2019-005 du 28 mai 2019
III.Sur la sanction et la publicité
L’article 45-III 7° de la loi du 6 janvier 1978 dispose : Lorsque le responsable de traitement ou son sous-traitant ne respecte pas les obligations résultant du Règlement (UE) 2016/679 du Parlement européen et du Conseil du 27 avril 2016 précité ou de la présente loi, le président de la Commission nationale de l’informatique et des libertés peut également, le cas échéant après lui avoir adressé l’avertissement prévu au I du présent article ou, le cas échéant en complément d’une mise en demeure prévue au II, saisir la formation restreinte de la commission en vue du prononcé, après procédure contradictoire, de l’une ou de plusieurs des mesures suivantes:[…] : 7° À l’exception des cas où le traitement est mis en œuvre par l’État, une amende administrative ne pouvant excéder 10 millions d’euros ou, s’agissant d’une entreprise, 2 % du chiffre d’affaires annuel mondial total de l’exercice précédent, le montant le plus élevé étant retenu. Dans les hypothèses mentionnées aux 5 et 6 de l’article 83 du Règlement (UE) 2016/679 du Parlement européen et du Conseil du 27 avril 2016 précité, ces plafonds sont portés, respectivement, à 20 millions d’euros et 4 % dudit chiffre d’affaires. La formation restreinte prend en compte, dans la détermination du montant de l’amende, les critères précisés au même article 83. L’article 83 du RGPD prévoit que
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CNILTEXT000038142154_1
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CNILTEXT000038142154
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DELIBERATION
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VIGUEUR
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Avis
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Délibération 2019-008 du 31 janvier 2019
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Délibération n° 2019-008 du 31 janvier 2019 portant avis sur un projet de loi relatif à l’organisation et à la transformation du système de santé
(demande d’avis n° 19001144)
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2019-008
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2019-01-31
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Après avoir entendu Mme Valérie PEUGEOT, commissaire, en son rapport, et Mme Nacima BELKACEM, commissaire du Gouvernement, en ses observations,
Emet l’avis suivant :
En application de l’article 11-4-a) de la loi du 6 janvier 1978 modifiée, la Commission a été saisie, par le ministère des solidarités et de la santé, de certaines dispositions du projet de loi relatif à l’organisation et à la transformation du système de santé.
La Commission est ainsi saisie des principales dispositions de son titre III ( Développer l’ambition numérique en santé ) à savoir celles relatives à l’élargissement et à la transformation du système national des données de santé (SNDS) (article 11), à la suppression d’un tiers de confiance chargé de procéder à la réidentification des personnes concernées dans le SNDS (article 15), à la création d’un espace numérique de santé (ENS) (article 12) et au nouveau dispositif appelé télésoin (article 13). Enfin, par saisine rectificative, la Commission est saisie des dispositions de l’article 20 du projet de loi relatives à l’extension du dispositif d’identification unique des victimes prévu par l’article L. 3131-9-1 du code de la santé publique (CSP).
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Délibération 2019-008 du 31 janvier 2019
Après avoir entendu Mme Valérie PEUGEOT, commissaire, en son rapport, et Mme Nacima BELKACEM, commissaire du Gouvernement, en ses observations,
Emet l’avis suivant :
En application de l’article 11-4-a) de la loi du 6 janvier 1978 modifiée, la Commission a été saisie, par le ministère des solidarités et de la santé, de certaines dispositions du projet de loi relatif à l’organisation et à la transformation du système de santé.
La Commission est ainsi saisie des principales dispositions de son titre III ( Développer l’ambition numérique en santé ) à savoir celles relatives à l’élargissement et à la transformation du système national des données de santé (SNDS) (article 11), à la suppression d’un tiers de confiance chargé de procéder à la réidentification des personnes concernées dans le SNDS (article 15), à la création d’un espace numérique de santé (ENS) (article 12) et au nouveau dispositif appelé télésoin (article 13). Enfin, par saisine rectificative, la Commission est saisie des dispositions de l’article 20 du projet de loi relatives à l’extension du dispositif d’identification unique des victimes prévu par l’article L. 3131-9-1 du code de la santé publique (CSP).
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CNILTEXT000038552658_30
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CNILTEXT000038552658
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DELIBERATION
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VIGUEUR
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Sanction
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Délibération SAN-2019-005 du 28 mai 2019
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Délibération de la formation restreinte n° SAN – 2019-005 du 28 mai 2019 prononçant une sanction pécuniaire à l'encontre de la société X
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SAN-2019-005
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2019-05-28
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Chaque autorité de contrôle veille à ce que les amendes administratives imposées en vertu du présent article pour des violations du présent règlement visées aux paragraphes 4, 5 et 6 soient, dans chaque cas, effectives, proportionnées et dissuasives. Selon les caractéristiques propres à chaque cas, les amendes administratives sont imposées en complément ou à la place des mesures visées à l'article 58, paragraphe 2, points a) à h), et j). Pour décider s'il y a lieu d'imposer une amende administrative et pour décider du montant de l'amende administrative, il est dûment tenu compte, dans chaque cas d'espèce, des éléments suivants : a) la nature, la gravité et la durée de la violation, compte tenu de la nature, de la portée ou de la finalité du traitement concerné, ainsi que du nombre de personnes concernées affectées et le niveau de dommage qu'elles ont subi; b) le fait que la violation a été commise délibérément ou par négligence ; c) toute mesure prise par le responsable du traitement ou le sous-traitant pour atténuer le dommage subi par les personnes concernées; d) le degré de responsabilité du responsable du traitement ou du sous-traitant, compte tenu des mesures techniques et organisationnelles qu'ils ont mises en œuvre en vertu des articles 25 et 32; e) toute violation pertinente commise précédemment par le responsable du traitement ou le sous-traitant; f) le degré de coopération établi avec l'autorité de contrôle en vue de remédier à la violation et d'en atténuer les
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Délibération SAN-2019-005 du 28 mai 2019
Chaque autorité de contrôle veille à ce que les amendes administratives imposées en vertu du présent article pour des violations du présent règlement visées aux paragraphes 4, 5 et 6 soient, dans chaque cas, effectives, proportionnées et dissuasives. Selon les caractéristiques propres à chaque cas, les amendes administratives sont imposées en complément ou à la place des mesures visées à l'article 58, paragraphe 2, points a) à h), et j). Pour décider s'il y a lieu d'imposer une amende administrative et pour décider du montant de l'amende administrative, il est dûment tenu compte, dans chaque cas d'espèce, des éléments suivants : a) la nature, la gravité et la durée de la violation, compte tenu de la nature, de la portée ou de la finalité du traitement concerné, ainsi que du nombre de personnes concernées affectées et le niveau de dommage qu'elles ont subi; b) le fait que la violation a été commise délibérément ou par négligence ; c) toute mesure prise par le responsable du traitement ou le sous-traitant pour atténuer le dommage subi par les personnes concernées; d) le degré de responsabilité du responsable du traitement ou du sous-traitant, compte tenu des mesures techniques et organisationnelles qu'ils ont mises en œuvre en vertu des articles 25 et 32; e) toute violation pertinente commise précédemment par le responsable du traitement ou le sous-traitant; f) le degré de coopération établi avec l'autorité de contrôle en vue de remédier à la violation et d'en atténuer les
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