By a decision of October 21, 2009 (n°07-43877), the French Supreme Court ruled that files created by an employee on a computer issued by his employer for work purposes were presumed professional unless the employee identified them clearly as personal. This being said, the Court concluded that the employer was entitled to open these files in the employee’s absence and without having informed the employee in advance.
In this case, the employee was suspected by his employer to have competed unfairly with the employer’s business. To investigate these suspicions, the employer requested a bailiff to seek evidence from the employee’s work computer. In order to prevent the employee from erasing the evidence, the employer did not alert the employee that his work computer would be examined.
During his examination of the computer, the bailiff noticed that the computer contained a folder titled with the employee’s initials and, within it, two sub-files, one titled “personal,” the other titled with the name of the employer’s competitor. The bailiff only opened the second sub-file, titled with the name of the competitor, where he found evidence that the employee had engaged in unfair competition against the employer.
Supported by an affidavit of the bailiff, the employee was terminated for gross fault, i.e., without any indemnity. Thereafter, the employee initiated a lawsuit against the employer for violation of his privacy.
The Court of appeals found that the bailiff should not have opened the folder titled with the employee’s initials without first informing the employee or without the employee being present.
Until this case, the case law was unclear on whether folders or files located on an employee’s work computer but titled with the employee’s name or initials would be afforded privacy protection under workplace privacy laws. However in this ruling, the French Supreme Court made clear that all files created by an employee on an employer’s computer belong to the employer unless they are expressly identified as personal. By adopting this position, the French Supreme Court was consistent with the French Data Protection Agency (CNIL) which, since 2002, has advised that employees should be cautious when using their work computers for personal purposes.
This decision is most helpful in that it clearly informed French companies of the privacy rules that apply to folders and files that employees store on their work computers. If the employee has clearly identified the files as personal, the employer has no choice but to either obtain the employee’s prior consent before opening the files, or to go before a Court to get a Court injunction allowing the employer to open the files.