French "Platform" regime: the saga continues
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17 JUIN 2016
French Digital Bill would extend data
portability beyond GDPR limits
Article 21 of the Digital Bill as adopted by the Senate states that "In any
event, consumers have the right to retrieve all their data under the
conditions laid down in this section". By targeting "all" the data, the
French Senate goes beyond the General Data Protection Regulation
("GDPR").
Portability and email services
Article 21 of the Digital Bill would require any email service provider to
make available, free of charge, the possibility for the consumer to
transfer his/her emails and contact list to another service provider.
The consumer would be able to exercise this right at the time of
termination or "deactivation" of the service, and would have the
possibility not only to access his/her email inbox for another six months,
but to send and receive messages from the old email address during this
period, free of charge.
Contacts
Winston Maxwell
Partner
[email protected]
Christine Gateau
Partner
[email protected]
Mathilde Gérot
Associate
[email protected]
hoganlovells.com
Retrieval of data stored online
The Digital Bill would require that online content and service providers
make available to their users a functionality enabling them to recover,
free of charge:
All files that they posted online; and
All data generated from the use of their account and available
online to the consumers, either at the time of the request or
before. These data must be provided in an open and easily
reusable standard. The text excludes data "significantly
developed" by the service provider.
Since the beginning of discussions on the Digital Bill, the proposal on
data portability has been criticized by email service providers and online
content and service providers. Service providers argue that the right to
data portability is likely to be costly and difficult to implement. During
the public consultation, the Syntec Numérique (a digital professional
union) suggested that data portability requests should be subject to a
legitimate interest test. Other entities such as the French telecoms
federation underscored the operational issues that would have to be
addressed.
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The legality of these measures has been questioned because they are
not consistent with the GDPR. As an EU regulation, the GDPR's
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French "Platform" regime: the saga continues
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provisions are directly applicable and thus there is no need to legislate
at a national level. Under CJEU case law, Member States must ensure
"simultaneous and uniform" application of regulations, due to the
principle of primacy of European law (CJEU, 7 February 1973,
Commission v. Italian Republic, C-39/72, §17; CJEU, 14 December
1971, Politi SAS v. Ministry for Finance of the Italian Republic, C-43/71,
§9: "the effect of a regulation (…) is therefore to prevent the
implementation of any legislative measure, even if it is enacted
subsequently, which is incompatible with its provisions").
Some MPs voiced concerns about the need to protect innovative
companies which have developed their own know-how on data
processing through algorithms and pointed out the importance to strike
the right balance between what effectively falls under personal data –
which an individual can take with him/her – and the prohibition of
disclosure of trade secrets. Under the French Digital Bill, value-added
data could be subject to data portability, opening the door to unfair
competition practices between the market players in this sector.
Moreover, French companies would be subject to stricter rules than
other European companies, creating a distortion of competition to the
detriment of French companies.
Discussions on the Digital Bill will now continue before the
Senate/National Assembly Joint Committee.
Let us know if you would like to discuss this topic in more details.
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