January 18, 2022
Updated Nov 24, 2022
In the age of personal data protection (Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data ; REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), the manager of a commercial company may legitimately consider it abnormal to see his or her personal data published and taken up on multiple parasitic annuals.
See as well : The negative opinion
These parasitic directories "pump" the commercial register to attract web traffic and advertising revenue, under the pretext of providing more or less muddy services, such as the collection of reviews and ratings on companies, or referencing services on the Internet for cash.
When the manager's personal data is concerned, there is an invasion of the privacy of these persons.
Especially since the publication of the leader's personal data is useless if not to arouse people's unhealthy curiosity.
There are indeed many other ways to reach a manager in case of debt or abuse.
Yet jurisprudence is reluctant to sanction platforms, on the pretext of a certain conception of freedom of expression, or of an alleged need in the public interest to publish the executive's personal data.
Thus, in a CJEU judgment, March 9, 2017, case n°C 398/15The Court of Justice of the European Union considers that the publication of personal data in the register responds to a legal obligation and an interest in the protection and transparency of trade, and must therefore, with certain exceptions, obviate the right to be forgotten, as recalled by the Google Spain judgment C-131/12 of 13 May 2014, which enshrined the right not to be indefinitely recorded and tracked by Google, in disregard of the objectives of social rehabilitation provided for by the law.
The Court sets the only limit that the processing of personal data should not exceed the "[duration] necessary for the purposes for which they are collected or for which they are further processed.
The concept is very vague, especially since some personal data of the leader, in particular his personal address, are often obsolete and useless.
Some national laws, including France's, require the publication of the personal address of the director, even though EU law only requires the publication of the name and functions (Dir. 68/151/EEC, Art. 3, which aims to allow the information of all interested third parties, without them having to justify a right or interest requiring protection (ECJ, n° C-97/96, Judgment of the Court, Verband deutscher Daihatsu-Händler eV v Daihatsu Deutschland GmbH, 4 December 1997).
Article 8 of the European Convention on Human Rights (hereinafter the "Convention" or the "ECHR") prohibits interference by states with private life when it is not necessary for the pursuit of certain aims, even if it is provided for by law, in these terms:
“Right to respect for private and family life
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.
There can only be interference by the "public authority" in the exercise of this right under certain conditions.
According to the Convention, interference by a public authority is only permissible if it meets two criteria:
an organic criterion:
- the interference must be "prescribed by law"; (but here the CJEU considers that this refers to any text of the public authorities, and not only to the "Law")
a proportionality criterion according to well-defined objectives which are:
- national security
- public safety
- the economic well-being of the country
- the defence of order
- the prevention of criminal offenses
- the protection of health or morals
- the protection of the rights and freedoms of others
The French practice of disclosure of personal addresses by the trade and company registry services constitutes "interference by public authority";
According to the European Court of Human Rights:
A person's home address constitutes personal information relating to private life and which, as such, enjoys the protection afforded by Article 8 (Alkaya v. Turkey, § 30).
The services of the registry of the commercial and companies court have the practice of systematically collecting and communicating on request, in particular via a simple order of Kbis extract, the personal address of the manager.
The public and systematic disclosure of the manager's personal address obviously infringes his private life, since it designates a priori his place of family life, his "domicile" as mentioned in Article 8 (1) aforementioned.
This public and systematic disclosure is to be distinguished from the simple collection of the personal address, which in itself is justified by a need to preserve an indication of the location of the person of the manager which can be communicated on presentation of a legitimate reason.
It is commonly accepted that the personal address of a natural person is not necessary in itself for his identification, only his date and place of birth are usually considered necessary for this purpose.
On the other hand, the designation of the manager's personal address to the public necessarily infringes the privacy of the manager when the latter expresses his wish that his address not be disclosed, and whatever the motivation of the leader, the latter being in the best position to assess the impact of such disclosure on his private life, and secrecy being inherent in the notion of respect for private life.
There is therefore an invasion of private life, that is to say “interference by a public authority with the exercise of the right to respect for private and family life” to use the terms of the Convention.
The Court of Cassation ruled that:
"The disclosure of an employee's home by the Administration without his or her consent would constitute an invasion of privacy" (Cass. Civ. 1re, 6 November 1990, Bull. civ. I, n° 238).
National and European case law, which will be discussed below, confirms that the non-consensual disclosure of the personal address constitutes an invasion of privacy.
This interference is unconventional because it is not "necessary", in the sense that neither the national or Community rules, nor the parliamentary proceedings, indicate in what way the disclosure of the leader's personal address is "necessary" for the pursuit of an objective set in 2° of 8 of the European Convention on Human Rights, which therefore suggests that this interference does not pursue any of the objectives set by 2° of 8° of the ECHR and is totally disproportionate ;
French case law and decisions or opinions of administrative authorities
The non-disclosure to the public of the personal address does not otherwise affect the the right of a third party to be informed of the personal address of the director on presentation of a legitimate reason, as provided for by the Béteille Act.
The judgment of the Court of Cassation rendered on March 19, 1991:
"if any person is entitled, in particular to escape indiscretion or malice, to refuse to reveal the place of his domicile or residence, so that in principle his will must be respected on this point by third parties , it is different when this concealment is dictated to him by the sole illegitimate intention of evading the performance of his obligations and defeating the rights of his creditors; that it is up to the judge in chambers to put an end to such a fraudulent maneuver, as soon as it is manifest” (Cass. Civ. 1ère, March 19, 1991, appeal no. 89-19.960)
Today, law n° 2010-1609 of December 22, 2010 known as the Béteille law goes further by widening the access to information of the judicial officer in charge of enforcement and holder of an enforceable title, by allowing him to obtain information directly from the third parties who hold it without going through the President of the Court.
Thus, the administrations of the State, the regions, the departments and the communes, the companies conceded or controlled by the State, the regions, the departments and the communes, the public establishments or bodies controlled by the administrative authority must communicate to the judicial officer in charge of the enforcement, holder of an enforcement order, the information they hold allowing the determination of the debtor's address, the identity and address of his employer or any third party debtor or depositary of liquid or payable sums and the composition of his real estate assets, to the exclusion of any other information, without being able to invoke professional secrecy. (Article L 152-1 of the Code of Civil Enforcement Procedures).
However, this information is strictly limited to the legal framework. They may only be used to the extent necessary for the performance of the title(s) for which they were requested. It is in particular forbidden for the judicial officer to communicate them to a third party (Cass. Civ. 1ère, March 22, 2012, n° 10-25811) or to combine them in a personal file.
"The address belongs to the private life. When the interest in knowing the address without the consent or even against the opposition of the person is of lesser value than the protection of privacy, the latter prevails." (CA Toulouse, ch. soc. 4, sect. 1, 25 Sept. 2015, n° 13/01895: JurisData n° 2015-021972)
"Thus, in the present case, after having recalled that the personal address is a piece of information that falls within the scope of private life (see also e.g. Cass. 1re civ., 19 March 1991, n° 89-19.960: JurisData n° 1991-000768. - Cass. 1re civ., 30 June 1992, n° 90-18.458: JurisData n° 1992-001674; Bull. civ. 1992, I, n° 213), the Court of Appeal examined whether an interest here superior to the employee's right to privacy justified revealing her address without her consent. "
The CADA believes that the merchant's home address should be concealed:
“The commission for access to administrative documents examined in its meeting of February 7, 2013 your request for advice relating to the communicable nature of a list of traders from an external market, showing the type of trade and their seniority.
The commission recalls, as a preliminary point, that if the name of a merchant, necessarily registered in the trade and companies register, is information the disclosure of which is not contrary to the provisions of II of article 6 of the law of July 17, 1978 relating to statements covered by the secrecy of private life, is however prohibited, by these provisions, the disclosure of documents revealing the working hours and the dates of holidays of merchants as well as any statement relating, for example, to the seller's address, date of birth or identity card number.
It also considers that are covered by the commercial and industrial secrecy protected by II of article 6 of the 1978 law, the documents which would
display any data relating to the commercial strategy of the businesses concerned, such as, for example, the dates and times of opening of the stalls.
The commission considers, in application of these principles, that the list of merchants on the external market of the municipality, which shows the type of products sold and the seniority of the businesses, is communicable, subject to the prior concealment of the address traders, as well as the indication of their days of presence on the market, which are likely to infringe the protection of the privacy of the interested parties or commercial and industrial secrecy.
European Union law
Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 on certain aspects of company law, following on from Council Directive 68/151/EEC of 9 March 1968 on co-ordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent, requires that directors be "identified" but never mentions their personal address.
In case C-398/15 of 9 March 2017, the Court, without evading the ability of Member States to provide for the provisions they wish with regard to the collection of personal data by commercial registers, specifies that only the collection of the identity of the directors is required:
32 In that regard, it should first be noted that, under Article 2(1)(d) of Directive 68/151, Member States must take the necessary measures to ensure that advertising mandatory relating to companies relates at least to the appointment, the termination of functions as well as the identity of the persons who, as a legally provided for body or members of such a body, have the power to commit the company concerned with regard to third parties and to represent it in court or participate in the administration, supervision or control of this company. In addition, according to the same Article 2(1)(j), the appointment and identity of the liquidators as well as, in principle, their respective powers must also be made public..”
Latvia no longer requires the ruler's home address (Ruķers M., Kā izpaužas tiesības uz personas datu aizsardzību publiski pieejamā reģistrā. Jurista Vārds, 26.jūnijs 2012/NR.26(725).
Same in Dutch law,
Section 16 of the Commercial Register Act 1996 provides for the possibility of restricting the publication of certain personal data for privacy purposes. In this regard, Article 32 of the 1996 Order on the Commercial Register stipulates that a manager of a legal entity may request that the mention of the domicile address of the said manager be blocked under certain conditions.
The Trade Register Act 2007 entered into force on 1 July 2008. Article 51 of the Commercial Register Order 2008 provides for a restriction on the publication of certain personal data for the purposes of privacy. According to paragraph 1 of this provision, the home address of a director, auditor, proxy holder, sole shareholder, holder of shares not fully paid up, liquidator or manager of a foreign company may not be consulted by third parties. However, there is an exception for, among others, administrative authorities, lawyers, bailiffs, notaries and certain supervisory authorities. A natural person may apply to block the publication of his home address under certain conditions pursuant to Article 51(3) of the above-mentioned Order. 22
Same in the UK:
Although most of the information held at Companies House is made available to the general public, some information, such as private addresses and full dates of birth, is not entered on the register but is shared with certain specified public authorities, such as as the police, as well as credit reference agencies. The legislator considers that the non-disclosure of the day of birth strikes a fair balance between the principles of transparency and confidentiality.
-Small Business and Enterprise and Employment Act 2015. Following complaints about identity theft, since October 2015 only the month and year of birth have been included in the public register, "Great news - we're listening to our customers and making changes", Companies House Blog, 17 June 2015, https://com panieshouse.blog.gov.uk/2015/06/17/great-news-were-listening-to-ourcustomers-and-making-changes/. From the same article, it appears that, from now on, the day of birth will be redacted from copies of documents transmitted to the register in paper format. In relation to earlier submissions, Companies House is working on an effective solution
-“Restricting the disclosure of your information”, Companies House March 2016, p. 3 and 5. 9
-“Our register: advice on protecting your personal information”, Companies House Blog, 21 January 2016, https://companieshouse.blog.gov.uk/2016/01/21/our-register-advice-on-protectingyour-personal -information/.
The national judge can set aside an unconventional national standard;
Even if the Constitutional Council has declared a legislative provision to be in conformity with the Constitution, the judicial and administrative courts still have the possibility of rejecting its application if they consider it to be contrary to the Convention (see for example Cass. Plein. 15 April 2011 n° (10-30.316)...a hope is born.
We'll lynch you: the right to be forgotten on the internet
We welcome the judgment of 22 November 2022, the Court of Justice (Judgment of the Court in joined cases C-37/20 | Luxembourg Business Registers and C-601/20 | Sovim) which goes towards more protection of privacy by finding the invalidity, under the Charter, of the
provision of the Anti-Money Laundering Directive requiring Member States to ensure that
information on the beneficial owners of companies and other legal entities incorporated in their territory
are accessible in all cases to any member of the general public.
According to the Court, public access to beneficial ownership information constitutes a serious interference
in the fundamental rights to respect for private life and the protection of personal data
staff, respectively devoted to Articles 7 and 8 of the Charter. In fact, the information disclosed
allow a potentially unlimited number of people to learn about the material and financial situation
of a beneficial owner. Furthermore, the potential consequences for data subjects resulting from any misuse of their personal data are aggravated by the fact that, once
available to the general public, these data can not only be freely consulted, but also
be stored and disseminated.