Dismissal for keeping pornography on the computer: the European Court found no violation
European Court studied how pornography harms the French railways and
Delivered a new ruling on February 22, 2018 in the case concerning dismissal for using a working computer for personal purposes ( Libert c. France, no. 588/13 ) This new case is different from the previous case ( Barbulesku v. Romania ), which was considered by the Grand Chamber of the Court and in which an infringement of the right to privacy was found due to the fact that the employer read employee correspondence in Yahoo Messenger without following certain procedures.
In the new case, a complaint related to the dismissal from the French railways, the SNCF, was considered. SNCF employee - Deputy Chief of the Control Brigade, Eric Lieber, was fired after 1,562 pornographic content files were found on his work computer (787 gigabytes). The company began checking the contents of Eric's computer after his work computer was given to another colleague who discovered these files on it, and informed the company about it.
In France, there are clear rules that an employer cannot view files and documents marked as “PRIVEE” (“PERSONAL”), except in special cases. Therefore, the main issue that was considered by the French courts in this case is the name of the folder in which Eric kept porn. In this case, Eric completely renamed the hard drive from D: / donnee (D: / data) to D: / donnees personelles (D: / personal data). He stored pornography in the rire folder (humor). The courts indicated, referring to the company's explanations, that the D: / drive was intended for storing working documents and therefore the entire disc could not be used for personal files. In addition, the term “ donnees personelles ” ( personal data ) could denote the folder in which the documents in which the employee was personally employed were stored, and accordingly it was impossible to understand precisely from the disc name that there are personal documents on it. Although, on the other hand, the French courts often use the adjective “ personel ” ( personal ) rather than “ prive ” (“ personal ”) in cases involving companies viewing files and correspondence of employees when they say that they cannot be viewed marked as “ personal ” (“ prive ”). Therefore, the European Court specifically noted this in its ruling, but indicated that in the present case it could not be used in favor of the dismissed employee, because the SNCF Rules on the use of the company's information system explicitly stated that “personal information should be clearly marked (option “ Prive ” (“ personal ”) in Outlook).
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Based on such an analysis, the European Court concluded that the SNCF and the national French courts had every reason to consider this case with all severity, since Eric had taken a substantial part of the computer’s hard disk with pornography, thus violating the SNCF ethical code. This, as the courts indicated, did not comply with the obligations imposed on Eric on exemplary behavior expected from an employee performing control functions in the company.
If we leave outside the scope of possible criticism of logic in the ruling, the main advice from a lawyer in the light of this case is: do not keep pornography on a working computer, even despite the ongoing discussions of legal scholars on constitutional law on pornography [1].
***
[1] A. Dolzhikov, “Manuscripts Do Not Burn,”: Unwritten Rights in Constitutional Justice, Comparative Constitutional Review No. 1 (98) 2014, p. 125.
Delivered a new ruling on February 22, 2018 in the case concerning dismissal for using a working computer for personal purposes ( Libert c. France, no. 588/13 ) This new case is different from the previous case ( Barbulesku v. Romania ), which was considered by the Grand Chamber of the Court and in which an infringement of the right to privacy was found due to the fact that the employer read employee correspondence in Yahoo Messenger without following certain procedures.
In the new case, a complaint related to the dismissal from the French railways, the SNCF, was considered. SNCF employee - Deputy Chief of the Control Brigade, Eric Lieber, was fired after 1,562 pornographic content files were found on his work computer (787 gigabytes). The company began checking the contents of Eric's computer after his work computer was given to another colleague who discovered these files on it, and informed the company about it.
In France, there are clear rules that an employer cannot view files and documents marked as “PRIVEE” (“PERSONAL”), except in special cases. Therefore, the main issue that was considered by the French courts in this case is the name of the folder in which Eric kept porn. In this case, Eric completely renamed the hard drive from D: / donnee (D: / data) to D: / donnees personelles (D: / personal data). He stored pornography in the rire folder (humor). The courts indicated, referring to the company's explanations, that the D: / drive was intended for storing working documents and therefore the entire disc could not be used for personal files. In addition, the term “ donnees personelles ” ( personal data ) could denote the folder in which the documents in which the employee was personally employed were stored, and accordingly it was impossible to understand precisely from the disc name that there are personal documents on it. Although, on the other hand, the French courts often use the adjective “ personel ” ( personal ) rather than “ prive ” (“ personal ”) in cases involving companies viewing files and correspondence of employees when they say that they cannot be viewed marked as “ personal ” (“ prive ”). Therefore, the European Court specifically noted this in its ruling, but indicated that in the present case it could not be used in favor of the dismissed employee, because the SNCF Rules on the use of the company's information system explicitly stated that “personal information should be clearly marked (option “ Prive ” (“ personal ”) in Outlook).
')
Based on such an analysis, the European Court concluded that the SNCF and the national French courts had every reason to consider this case with all severity, since Eric had taken a substantial part of the computer’s hard disk with pornography, thus violating the SNCF ethical code. This, as the courts indicated, did not comply with the obligations imposed on Eric on exemplary behavior expected from an employee performing control functions in the company.
If we leave outside the scope of possible criticism of logic in the ruling, the main advice from a lawyer in the light of this case is: do not keep pornography on a working computer, even despite the ongoing discussions of legal scholars on constitutional law on pornography [1].
***
[1] A. Dolzhikov, “Manuscripts Do Not Burn,”: Unwritten Rights in Constitutional Justice, Comparative Constitutional Review No. 1 (98) 2014, p. 125.
Source: https://habr.com/ru/post/349948/
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