The European Court of Human Rights validates the French position by ruling that the employer may freely consult a file that is not identified as private by the employee as provided for by the IT charter applicable in the company (ECHR, 22/02/2018, No. 588/13).
As a reminder, the rules concerning the access by the employer to the employee’s files and documents on his professional computer tend to reconcile various challenges and notably: enable the employer to limit the risks of abuse related to a personal use of the professional computer and protect the company while ensuring the employee’s private life at his workplace.
- Principle: presumption of the professional nature of the files issued, received or stored on the professional computer. The employer can consult them in the absence of the person concerned and use them in a disciplinary procedure.
- Exception: personal files. The employer cannot consult them in the absence of the employee who is entitled to have his privacy respected even during working hours and at the place of work (Nikon: Cass. Soc. 2/10/2001 No. 99-42.942), including if a non-professional use of the computer was forbidden. The employer cannot use them in a disciplinary procedure.
- Exception to the exception: in certain cases, the employer continues to have the possibility to consult the personal files (e.g. presence of the employee, special risk or event, decision of a judge).
The personal nature must result from a clear indication in the title of the file, the folder where it is archived or the subject of the message. Note that filing files in the “My Documents” folder or in a folder identified with the employee’s initials does not make them personal.
Without this thwarting the principles recalled above, it may be useful to set out, in the IT charter or the internal regulations, both the conditions of use of the professional IT tools and their conditions of access by the employer.
To go further: while the Supreme Court had ruled that the presumption of personal nature was not lost in the case of a connection on a professional computer to an employee’s personal emails left open, a recent order ruled that messages appearing on a Facebook session left open on the screen of a company computer, and therefore visible to anyone present in the company, lost their private nature (Toulouse CA, 02/02/2018, No. jurisdata 2018-001564).