ECHR: employers are free to check computer files not labelled as “private”

ECHR: employers are free to check computer files not labelled as “private”

On 22 February, the European Court of Human Rights lent its backing to the stance adopted by the French Hight Court, which ruled that an employer may check worker files without their knowledge, when they are not identified as “private”. In this particular case, the worker in question had renamed his hard disk or ‘personal information’, meaning he’d used a significant portion of his work computer’s storage to hold contentious files. There are numerous facets to the decision. Beyond the fact that the court’s conclusion applies to everyone, it has a particular resonance to public companies, because the ECHR said a measure was taken by a “public” employer – the case involved a worker for SNCF, France’s national state-owned railway company – as regards one of its employees may constitute an interference by a public body in the worker’s “right to respect for private and family life”. The case was therefore analysed from the angle of a public authorities’ obligations, which are different to those of a private sector company.

The case was centred around a manager of the rail transport company, who was contesting his dismissal. He was fired after the company seized his work computer and found the storage of pornographic videos and images as well as forged certificates drawn up for third persons. The controversial files were found in the absence of the worker concerned, however the judges in Strasbourg did not believe this represented a violation of the right to respect for private life, guaranteed under Article 8 of the European Convention on Human Rights. They said the files had not been duly identified as being “private”.

The files that were inspected by the employer, in the worker’s absence, were not labelled as “personal” as is required under French law for them to be considered as such. They were labelled as “laughs”, “Fred P”, “Socrif” or “Catherine”. However the files were stored on a hard disk labelled, by default, as “D:/Datas”, which was used by staff to store their work documents and which, on the employee’s computer, had been titled “D:/personal data”. The ECHR affirmed that an employee “could not have used a whole hard drive, which was supposed to record professional data, for private use and that the generic term “personal data” could have referred to work files being processed personally by the employee and might therefore not have explicitly designated elements related to private life”. Furthermore, the company User’s Charter laid down that “private information should be clearly identified as such”. The employer was therefore within its rights to check the files and use them as backing for disciplinary action.

Case of a public company. Given the fact the complaint was made against a public company, the Court decided to apply the paragraph of Article 8 which governs steps taken by a public authority. Under the article, such an authority cannot interfere in such a way if it is not permitted by law and if it does not seek one or more legitimate goals, and if it would not be deemed “necessary in a democratic society”. In this particular case, the court decided the all the criteria for interference were satisfied.

ECHR, 22 February 2018 – Libert vs. France (available only in French).

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