Dismissal for storing pornography on a working computer: European Court of Justice found no violation

    The European Court examined how pornography harms the French railways and
    issued a new ruling on February 22, 2018 in the case of dismissal for using a personal computer for personal purposes ( Libert c. France, no. 588/13 ). This new case differs from the previous similar case ( Barbulescu v. Romania ), which was examined by the Grand Chamber of the Court and which found a violation of the right to privacy due to the employer reading employee correspondence in Yahoo Messenger without following certain procedures.

    In a new case, the complaint related to the dismissal from the French railways - SNCF was considered. Eric Lieber, SNCF employee - deputy chief of control team, was fired after 1562 files with pornographic content (787 gigabytes) were found on the hard drive of his working computer. The company began checking the contents of Eric's computer after his work computer was handed over to another colleague who found these files on him, which he informed the company about.

    In France, there are clear rules that the employer cannot view files and documents marked as “PRIVEE” (“PERSONAL”), except in special cases. Therefore, the main issue that the French courts considered in this case is the name of the folder in which Eric kept the porn. In this case, Eric completely renamed the hard drive from D: / donnee (D: / data) to D: / donnees personelles (D: / personal data). He kept pornography in the rire folder (humor). The courts indicated, citing company explanations, that the D: / drive was intended for storing working documents and therefore the entire drive could not be used as a whole for personal files. In addition, the term " donnees personelles " ( personal data) could indicate the folder in which the documents that the employee was personally engaged in were stored, and accordingly it was impossible to accurately understand from the name of the disk that it contains personal documents. Although, on the other hand, the French courts very often use the adjective “ personel ” ( personal ) rather than “ prive ” (“ personal ”) in cases involving companies viewing files and correspondence of employees when they say that it is impossible to view employee files marked as “ personal ” (“ prive"). Therefore, the European Court specifically emphasized this in its ruling, but indicated that in this case it cannot be used in favor of the dismissed employee, because the SNCF Rules on the use of the company's information system explicitly states that “personal information should be clearly marked (option “ Prive ” (“ personal ”) in Outlook).

    Based on this analysis, the European Court of Justice concluded that the SNCF and the French national courts had every reason to consider this case with all severity, since Eric had taken up a substantial part of the working computer hard drive with pornography, thereby violating the SNCF code of ethics. This, as indicated by the courts, did not correspond to the obligations imposed on Eric regarding the exemplary behavior expected of an employee exercising control functions in the company.

    If we leave aside the possible criticism of logic in the resolution, the main advice from the lawyer in the light of this case is: do not store pornography on a working computer, despite the ongoing discussions of legal scholars about the constitutional right to pornography [1].

    ***
    [1] A. Dolzhikov, “Manuscripts Do Not Burn”: unwritten rights in constitutional justice, Comparative Constitutional Review No. 1 (98) 2014, p. 125.

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