CEDH · CASELAW;CLIN;ENG — 22 février 2018

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France - 588/13 Judgment 22.2.2018 [Section V] Article 8 Article 8-1 Respect for private life Dismissal for using work computer to store large volume of pornographic material: no violation Facts – The applicant, an employee at the French national railway company (SNCF), was dismissed in 2008 following the discovery, in his absence, of 1,562 pornographic images (totalling 787   megabytes) on his work computer. The applicant regarded this as a disproportionate and unlawful infringement of his private life, given that he had added the adjective “personal” to the default name of the hard disk in question (“D:/data”). In dismissing his appeals the courts held as follows: the employer’s “user   charter” provided that private information had to be clearly identified as such; the generic term “personal data” did not unequivocally designate information covered by privacy, particularly as an employee could not use the whole of a hard disk, which was supposed to contain professional data, for private purposes; and dismissal was not a disproportionate measure in view of the applicant’s “massive” breach of the company’s internal rules. Law – Article 8 (a)     Applicability – The Court could accept that in some circumstances non-professional data, for example data clearly identified as being private, stored by an employee on a computer supplied by his employer in order to discharge his duties, might be deemed to relate to his “private life”. In the case at issue, the SNCF allowed its staff occasionally to use the computer facilities placed at their disposal for private purposes, subject to compliance with specific rules. (b)     Merits (i)     Negative obligation or positive obligation: existence of “interference by a public authority” – Given that files belonging to the applicant had been opened on his work computer without his knowledge and in his absence, the Court was prepared to accept that there had been an interference with his right to respect for private life. The question whether those files had been clearly identified as personal is examined below in the framework of the proportionality of the measure. The Court rejected the Government’s objection that the SNCF could not be regarded as a “public authority” for the purposes of Article   8: even though its activity was “industrial and commercial” and its staff had a private-law relationship with it, the SNCF was nonetheless a legal entity established under public law which was placed under the supervision of the State, whose directorship was appointed by the latter, and which provided a public service, held a monopoly and benefited from an implicit State guarantee. Consequently, unlike in the case of Bărbulescu v.   Romania [GC] (61496/08, 5   September 2017, Information Note   210 ) – in which the interference was carried out by a strictly private-sector employer – the complaint had to be analysed from the angle not of the State’s positive obligations but of its negative obligations. (ii)     Prescribed by law – Clearly, the relevant articles of the Labour Code merely stated, in a general manner, that any restrictions on employees’ rights and freedoms had to be “justified by the nature of the task to be executed” and “proportionate to the aim pursued”. Equally clearly, at the material time the case-law of the Court of Cassation stated that unless there was a serious risk or in exceptional circumstances, employers could only open files identified by an employee as being personal on the hard disk of a computer supplied for that employee’s use in the presence of the latter (or after calling him or her to their office). However, the Court of Cassation had added that files created by an employee by means of the computer equipment supplied to him or her were deemed professional unless the employee had identified them as personal. Positive law thus sufficiently specified the circumstances and conditions in which the employer could open files stored in an employee’s work computer. (iii)     Legitimate aim – The interference had been intended to safeguard the protection of “the   rights of others”, that is to say, in this case, those of the employer, who might legitimately wish to ensure that his employees were using the computer facilities which they had placed at their disposal in line with their contractual obligations and the applicable regulations. (iv)     Necessity in a democratic society – French positive law comprised a mechanism for protecting private life by laying down that files identified as being personal could only be opened in the presence of the person concerned. As regards the courts, the grounds on which they had dismissed the applicant’s appeal regarding respect for his private life seemed relevant and sufficient. Clearly, by using the word “personal” rather than “private” the applicant had opted for the term used in the Court of Cassation’s relevant case-law. However, the employer’s Computer Charter specifically used the word “private” to refer to such messages and files, which employees should so identify. The amount of storage space used for the impugned purposes could also have justified a degree of severity. In sum, the domestic authorities had not overstepped their margin of appreciation. Conclusion : no violation (unanimously). (See also the Factsheets on New technologies and Surveillance at workplace )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes