The freedom proclaimed by article 2 of the Declaration of the Rights of Man and the Citizen
of 1789 implies the right to privacy. Consequently, the collection, recording, storage,
consultation and disclosure of personal data must be warranted by a ground of general
interest and implemented in a manner that is suitable and proportionate to this purpose.
22
The LIL includes provisions specific to certain data: e.g. sensitive data, data
relating to offences, convictions and security measures.
23
Adaptation of the current framework to the GDPR has widened the range of
sensitive data. Apart from data on racial or ethnic origin, political opinions, etc. the
LIL now mentions “genetic” and “biometric” data.
24 The Act of 20 June 2018 adds
controlled access using biometric data in working relations, the re-use of public
information featuring in judgments, and processing required for public information
and research. Similarly, it is no longer a question of sex life but of sexual orientation.
In principle, such data cannot be processed.
I. - It is prohibited to process data of a personal character that reveal the supposed racial
origin or ethnic origin, political opinions, religious or philosophical convictions or tradeunion membership of a natural person or to process genetic or biometric data for the
purposes of identifying a natural person individually, data concerning health or data
concerning sex life or sexual orientation of a natural person.
25
However, there are exceptions in criminal law (processing relating to criminal
convictions), research (for archival, research, and statistical purposes), and health.
The Act of 20 June 2018 introduces amendments surrounding the use of algorithms in individual legal decisions and administrative decisions. Decision no 2018765 DC of the Conseil Constitutionnel of 12 June 2018 provides useful clarification
on this last point.
26 It held that the new provisions surrounding the use of algorithms
are consistent with the Constitution because “use of the algorithm alone as a basis for
an individual administrative decision is subject to compliance with three conditions”
(No 70):
(1) The decision “shall state explicitly that it has been adopted on the basis of an
algorithm”. Moreover, the main characteristics for implementing the algorithm
shall be disclosed to the data subject on request. Consequently, it shall not
infringe any of the secrets or interests stated in subsection 2 of article L 311-5
of the Code on relations between the public and the administration,
(2) The individual administrative decision based on the algorithm alone “shall be
subject to administrative appeal procedures”,
(3) It shall not pertain to any sensitive data.
22 For example: Conseil Constitutionnel, Decision no 2012-652 DC of 22 March 2012, no 8 and
Decision no 2016-745 DC of 26 January 2017, no 25. NOR: CSCL1702669S.
23 LIL, Article 6.
24 See Bourgeois (2017), no 362.
25 LIL, Article 6 I.
26 Conseil Constitutionnel, Decision no 2018-765 DC of 12 June 2018, JORF 20 June 2018: NOR:
CSCL1816349S.
Nicolas-Vullierme
(2018),
https://audeladudroit.fr/algorithme-droitsfondamentaux/. (Accessed 21 September 2018). Rochfeld (2018), p. 474.
162
L. Nicolas-Vullierme
of 1789 implies the right to privacy. Consequently, the collection, recording, storage,
consultation and disclosure of personal data must be warranted by a ground of general
interest and implemented in a manner that is suitable and proportionate to this purpose.
22
The LIL includes provisions specific to certain data: e.g. sensitive data, data
relating to offences, convictions and security measures.
23
Adaptation of the current framework to the GDPR has widened the range of
sensitive data. Apart from data on racial or ethnic origin, political opinions, etc. the
LIL now mentions “genetic” and “biometric” data.
24 The Act of 20 June 2018 adds
controlled access using biometric data in working relations, the re-use of public
information featuring in judgments, and processing required for public information
and research. Similarly, it is no longer a question of sex life but of sexual orientation.
In principle, such data cannot be processed.
I. - It is prohibited to process data of a personal character that reveal the supposed racial
origin or ethnic origin, political opinions, religious or philosophical convictions or tradeunion membership of a natural person or to process genetic or biometric data for the
purposes of identifying a natural person individually, data concerning health or data
concerning sex life or sexual orientation of a natural person.
25
However, there are exceptions in criminal law (processing relating to criminal
convictions), research (for archival, research, and statistical purposes), and health.
The Act of 20 June 2018 introduces amendments surrounding the use of algorithms in individual legal decisions and administrative decisions. Decision no 2018765 DC of the Conseil Constitutionnel of 12 June 2018 provides useful clarification
on this last point.
26 It held that the new provisions surrounding the use of algorithms
are consistent with the Constitution because “use of the algorithm alone as a basis for
an individual administrative decision is subject to compliance with three conditions”
(No 70):
(1) The decision “shall state explicitly that it has been adopted on the basis of an
algorithm”. Moreover, the main characteristics for implementing the algorithm
shall be disclosed to the data subject on request. Consequently, it shall not
infringe any of the secrets or interests stated in subsection 2 of article L 311-5
of the Code on relations between the public and the administration,
(2) The individual administrative decision based on the algorithm alone “shall be
subject to administrative appeal procedures”,
(3) It shall not pertain to any sensitive data.
22 For example: Conseil Constitutionnel, Decision no 2012-652 DC of 22 March 2012, no 8 and
Decision no 2016-745 DC of 26 January 2017, no 25. NOR: CSCL1702669S.
23 LIL, Article 6.
24 See Bourgeois (2017), no 362.
25 LIL, Article 6 I.
26 Conseil Constitutionnel, Decision no 2018-765 DC of 12 June 2018, JORF 20 June 2018: NOR:
CSCL1816349S.
Nicolas-Vullierme
(2018),
https://audeladudroit.fr/algorithme-droitsfondamentaux/. (Accessed 21 September 2018). Rochfeld (2018), p. 474.
162
L. Nicolas-Vullierme