According to the ECHR, controlling the content of the work computer constitutes an interference to the employee’s right to respect for private life.
However, such interference may be admissible if it is foreseen by internal rules, aimed to ensure that the use of the computer is conform and if it is strictly limited to checking files which have not been identified as being private by the employee.
The computer user’s charter of a public sector employer foresees that the computer facilities placed at the disposal of the employees must be used for professional purpose. Occasional use for personal purpose is tolerated, as long as the files are identified as « personal ».
During the absence of an employee, the employer controls the hard drive of his work computer. The employer discovers falsified documents drawn up for third persons and pornographic files. These documents and files are stored in a folder called "personal data". Following this discovery, the employer dismisses the employee.
The (French) national courts rule that the decision to dismiss was justified and that there was no violation of the employee’s right to respect for private life. Lastly, the employee applies to the European Court of Human Rights.
2. Decision of the Court
a. Interference with the right to privacy
The employer has interfered with the employee's right to privacy on the ground that the personal files had been opened in his absence and without informing him.
However, the Court verifies whether the conditions allowing an interference with the employee's right to privacy are met. To be admissible, such interference must be prescribed by law (b), pursue a legitimate aim (c) and be necessary in a democratic society (d).
b. The interference is prescribed by law
National legislation and case-law lay down the conditions under which the employer is authorised to access files stored on a computer placed at the disposal of the employee. Consequently, the Court decides that the interference had a basis in law.
c. The interference pursued a legitimate aim
The Court notes that the interference aimed the protection of the employer's rights. For the Court, an employer « might legitimately wish to ensure that their employees were using the computer facilities which they had placed at their disposal in line with their contractual obligations and the applicable regulations ».
d. The interference was proportionate
The Court observes that the employer's internal rules and the national law allow the employer to access professional files contained on the hard drive of computers placed at the disposal of employees.
Unless there was a serious risk or in exceptional circumstances, the employer could not surreptitiously open files identified as being personal. He could only open the files in the presence of the employee or after the employee had been duly informed.
According to the Court, this measure (of protection against abuse and arbitrariness) was respected by the employer. The files he accessed were not identified as "private". He could thus control the files contained on the work computer without informing and summoning the employee.
Furthermore, the Court confirms that the sanction was proportional to the infringement. The massive violation by the employee of the internal rules governing the use of computer facilities justified the dismissal.
What to remember?
An employer who places computers at the disposal of employees should mention in his work rules that:
- The IT tools must be used in principle for professional purpose;
- Private use is only tolerated;
- In case of private use, the employee's personal files stored on the computer's hard drive (or servers) must be explicitly identified as "private";
- The employer has the right to control the content of the hard drive of the computer placed at the disposal of an employee.
Since the work rules mentions appropriate information, the employer may access all files stored on the hard disk drive of the work computer, except for files identified as "private" by the employee.
ECHR, Libert v. France, 22 February 2018.