FRANCE Law and Practice Contributed by: Eva Kopelman, Ségolène Cox and Alexis Alié-Sandevoir, Axipiter
8. Special Cases 8.1 Whistle-Blowing
ality of individuals interviewed during the investiga - tion, including the alleged victim, the respondent, or witnesses. In any event, any access granted should be propor - tionate to the requesting employee’s rights while ensuring compliance with confidentiality obligations and legal data protection requirements. 7.4 AI AI tools may be used in the context of internal inves - tigations in France, but their use remains limited in practice. When they are used, it is generally as sup - port tools to facilitate the review and analysis of large datasets (eg, emails, documents, messaging records), assist with keyword searches, or identify patterns or anomalies that may be relevant to the investigation. However, any use of AI must remain strictly propor - tionate, human-supervised and compliant with the GDPR, particularly with regard to transparency, data minimisation, accuracy and security. Employers must ensure that data processed by AI tools remains con - fidential and is not transferred outside the EU without appropriate safeguards. AI also raises specific data-protection considerations, including: • the risk of profiling or automated decision-making, which is prohibited unless strict GDPR conditions are met; • the need to ensure that algorithms do not introduce bias that could affect the fairness of the investiga - tion; and • the obligation to inform employees that their data may be processed by AI tools and to document the legal basis for such processing. In all cases, AI cannot replace human judgment. Find - ings must be reviewed, validated and contextualised by the investigator before being relied upon.
France provides specific whistle-blower protections under Law No 2016-1691 of 9 December 2016 (“Sapin II”), further strengthened by the “Waserman” Law of 21 March 2022. Definition: A whistle-blower is defined as a natural person who, in good faith and without direct finan - cial gain, reports or discloses information regarding a crime, offence, threat, or harm to the public interest; a violation or attempted concealment of a violation of international commitments ratified by France, EU law, national law, or regulation (Article 6, Sapin II). Who is protected: • the whistle-blower themselves; • facilitators who assist the whistle-blower; • individuals linked to the whistle-blower who may face retaliation; and • legal entities controlled by or working with the whistle-blower in a professional context (Article 6-1, Sapin II). The scope of situations covered covers crimes, offences, threats, harm to the public interest, viola - tions of international obligations, EU law, or French law. Additional protections: • civil and criminal immunity for damages or liability arising from the report (Article 10-1, Sapin II; Article 122-9, Criminal Code); • protection against retaliation, threats, or prohibited adverse measures (Article 10-1, Sapin II); • adjustment of the burden of proof in cases of retali - ation, similar to harassment claims (Article 10-1, Sapin II); • criminal sanctions against those obstructing inter - nal or external reporting (Article 13, Sapin II); • civil and criminal sanctions for abusive proceed - ings against a whistle-blower (Article 13, Sapin II); and • psychological and financial support measures for whistle-blowers (Article 14-1, Sapin II).
163 CHAMBERS.COM
Powered by FlippingBook