FIRED FOR STORING PORN ON COMPANY NOTEBOOK. IS IT FAIR IN STRASBOURG?

26 March 2018

Can the employer open files on employee’s company notebook in a folder entitled “personal data”? Can the employer fire the employee if he founds a ton of sexual content? These were the key questions in the case Libert vs. France in front of The European Court of Human Rights. Read our article in which we summarise the judgment.

Facts of the case

Mr. Libert worked at the French national railway company (SNCF) as deputy head of the surveillance unit. His work computer had been opened by the employer without his knowledge and in his absence, and a large number (1652 pieces) of porn images and films had been found on the hard drive.

Needless to say, he was shortly fired by the SNCF.

It seems that Mr. Libert must have devoted his free time not only to the adult content but to study the French privacy related case law, too: he stored the delicate material on the drive D of his work computer, usually entitled at the employer as “D:/data” by other colleagues, but he renamed the whole drive to “D:/personal data”.

He apparently used this trick, because according to the general principle of French court practice, an employer could open files identified as being “personal” on the employee’s work computer only in the presence of the employee, or after the latter had been duly informed about the control.

Since SNCF neither opened Mr. Libert’s work computer in his presence, nor informed him duly about the control of his computer, he challenged the dismissal for being fired based on evidence obtained unlawfully by the employer.

The domestic courts dismissed Mr. Libert’s claim on the basis that SNCF’s User’s Charter, regulating the use of work computers, laid down that private use of company computers is exceptional, and private information stored on work computers should be clearly identified as such (“private” option in the Outlook criteria). That was not the case here in the French judges’ opinion.

The case in Strasbourg

Mr. Libert has brought the case in front of the European Court of Human Rights on the basis that his right to respect for private life has been infringed, because his employer had opened, in his absence, personal files stored on the hard drive of his work computer.

The French Government maintained that the interference to the private life of the applicant was based on law, it’s objective was to guarantee the protection of the rights of employers, who might legitimately wish to ensure that their employees were using the work computers in line with the applicable regulations, and it had not gone beyond what is necessary in a democratic society.

The Court shared the Government’s standpoint, and highlighted that the employee could not have used the whole hard drive, which was supposed to record professional data, for private use. The generic term “personal data” used by Mr. Libert, could have referred to work files being processed personally by him, and might therefore not have explicitly designated elements related to private life.

The Court also added that by using the term “personal” rather than “private”, Mr Libert had opted for the word which was used by the French courts to the effect that an employer could not, in principle, open files designated “personal” by the employee.

However, in the present case, the User’s Charter of the employer specifically stated that “private“ information had to be clearly identified as such. Mr.Libert failed to comply with that requirement, when marking as “Personal Data”  the whole drive D of a work computer, which could be used for private purposes only exceptionally.

Summary

For employers it is worth to have internal policy regulating the use of company computers and other electronic devices that may contain personal data of employees. In case the internal policy is clear, specific, and well-drafted, as in the present case, the employee has less chance to invoke general principles to challenge the legality of employer’s actions.