What is the influence of the CNIL in commercial prospecting?
The General Data Protection Regulation, known as “GDPR”, in force since May 25, 2018, is a European text aimed at regulating the processing of personal data on the territory of the European Union. It follows the modification of the law relating to data processing, files and freedoms of January 6, 1978. The CNIL is the regulator. Cooperation with the CNIL in the processing of personal data as part of commercial prospecting is mandatory. What is the CNIL and what is its impact on prospecting ?
What does the CNIL consist of?
It is an independent administrative authority responsible for the protection of personal data in France. The C NIL or National Commission for Information Technology and Liberties carries out controls at company level to verify the compliance of their actions with the GDPR . It ensures that digitalization and digital technology do not infringe on human identity, privacy and individual freedom. The CNIL carries out its missions in accordance with Law No. 78-17 of January 6, 1978 amended on August 6, 2004.
It has six main missions:
- Inform: it informs people about their obligations and rights.
- Regulate: it supports managers in their digital projects. She is requested for all projects relating to the protection of personal data (bill, defense and public security). In order to simplify formalities for routine requests, the CNIL has established simplified standards.
- Protect: it helps citizens exercise their rights (access to files and data concerning them, reception and investigation of complaints). She supports the data protection delegates appointed by companies.
- Control: it controls computer processing in companies. It verifies respect for individual freedom, but also the security of the information system.
- Sanction: if it finds a breach of the provisions relating to the GDPR, after a formal notice, the CNIL can impose sanctions ranging from a fine to a legal measure (referred to the competent court, referred to the public prosecutor )
- Anticipate: it must be able to anticipate technological developments in order to assess the consequences on the exercise of rights and freedoms.
In commercial prospecting, the CNIL aims to protect the people approached.
Commercial prospecting and CNIL
In terms of commercial prospecting, the CNIL's verifications are based on two main lines: “free, specific, informed and unequivocal” consent respect for the people's right to object.
In this case, generally speaking, the application of the GDPR and the existence of the CNIL does not change the rules on commercial prospecting. However, there are basic principles to respect:
- for individuals or BtoC, canvassing can be done on the sole condition that the person has explicitly given their consent at the time of the collection of personal data. The person must be able to object easily and free of charge.
- For professionals or BtoB , the manager must be informed in advance that their email address will be used for prospecting purposes. He also has a right of opposition. On the other hand, generic professional addresses (contact details of legal entities) are not subject to the right of opposition. The subject of the prospecting must remain consistent with the profession of the person canvassed.
Data transfer
Sometimes this data is transmitted between business partners. The CNIL reminds that companies carrying out commercial prospecting on databases collected by another company must obtain the free and specific consent of Internet users before any canvassing.
Under these conditions, any organization which holds contact details and which wishes to share them with other organizations in order to carry out prospecting, regardless of the channels used, must first respect the following measures:
- The person must consent to their address being passed on to others. But before that, she must be informed of the transmission and its purpose.
- The person can object by a simple and free means. Concretely, the right to opposition must be materialized by a check box often accompanied by a message stipulating this opposition.
- The person must have access to the list of partners receiving the data (visible on the form).
- The person must be aware of changes to the list. An updated exhaustive list must be visible directly on the form or via a link.
- The consent obtained by the company collecting the data on behalf of its partners is only valid for the latter.
- Partners who solicit people must give them the right to object. They must also indicate the provenance of their sources.
These pieces of information on the processing of personal data must be delivered to the person concerned.
Personal data cannot be transmitted outside the European Union (according to the European directive of October 24, 1995) if the destination country does not offer an appropriate level of protection. Some countries that are not members of the European Union have adopted similar laws recognized by member states (Monaco, Switzerland, etc.). Beyond Europe, Canada, Australia, Senegal…. Also have equivalent authority. The United States, Japan, etc. have, on the other hand, adopted guarantee legislation; it is up to the judicial courts to sanction breaches.
The CNIL supervises commercial prospecting. It ensures good commercial canvassing practice by: verifying the nature and origin of the data; supervision of the contract with subcontractors; and information of the people concerned.
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