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Thursday, February 22, 2018

ECHR Upholds Search of Employee Work Computer

On February 22, the European Court of Human Rights upheld the termination of a French employee on the basis of discovery of pornography on his work computer.   Eric Libert, a regional director of surveillance for SNCF, was fired in 2008 after a search of his computer revealed a large number of files containing pornographic content and what was described as forged certificates for third parties.  Libert had appealed to French courts, claiming that his employer had violated his “right to respect for private and family life,” a right guaranteed in Article 8 of the European Convention on Human Rights.  However, the courts ruled that while he had marked the files as “personal,” he should have marked them as “private,” which under French law would have prevented scrutiny by his employer.  The ECHR agreed, adding that SNCF ““had pursued a legitimate aim of protecting the rights of employers, who 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.”  It is curious that so little consideration was given by the courts to Libert’s evident intent to keep access to certain files to himself, with the ruling apparently turning upon his use of the wrong file descriptor.

The ECHR has been active in recent years in cases involving workplace monitoring, threading the needle on this issue by deciding cases with close attention to the facts involved.  As reported in this blog, the ECHR backed the monitoring of chats and webmail accounts of a Romanian employee in January 2016, but just last month ruled against what turned out to be partially covert video surveillance of Spanish employees.  As noted in the earlier case, ECHR rulings, unlike those of the Court of Justice of the European Union, are only applicable in the member state in which the case originates.

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