New decision of the ECHR on the employer’s right to monitor a worker’s personal file : a good IT charter is essential !

Several months ago, we informed you about the Barbulescu case, in which the ECHR ruled on the conditions in which an employer can monitor employees’ communications.

On 22 February 2018, the ECHR examined the employer’s right to consult an employee’s personal files on a work computer.

What happened?

After he was suspended from duty for several months, a railway company official, Mr. Libert, came back to work and noted that his work computer had been seized. He was informed by his superiors that the computer had been found to contain forged certificates and a large number of files containing pornographic images and films.

He was dismissed from his post.

Before the French courts and then, before the ECHR, he argued that, since he had marked the computer files as “personal”, his employer was not allowed to look at them in his absence. He claimed a violation to his right to a private life, enshrined in Article 8 of the ECHR.

Court’s decision

Firstly, the Court ruled that the consultation of the files by Libert’s employer pursued a legitimate aim of protecting the rights of employers, who might legitimately wish to ensure that their employees are using the computer facilities in line with their contractual obligations and the applicable regulations.

Secondly, the Court noted that the Company’s User’s Charter laid down that private information should be clearly identified as such. Because Mr. Libert had marked his files personal, not private, it was not clear whether or not the information in them related to his personal work details. Indeed, according to the Court, 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.

The Court therefore rejected Libert’s argument that since the impugned photographs and videos had been found in a file named “D:/personal data”, it was clear that the documents under this file related to his private life.

What conclusions can be drawn from this decision?

If the Court decided that there was no violation of Libert’s right to private life, it is because of the existence of an IT charter clearly specifying that private files should be named as “private”. In the absence of such an IT charter, it is likely that the Court would have ruled in favor of the employee.

It is thus essential to have clear company rules, such as an IT charter, determining in which conditions computer files can be considered as relating to private life, and informing employees of the employer’s right to monitor their communications and/or computer files.

Source : ECHR, decision of 22 February 2018, Libert v. France, application no. 588/13.