An employee was dismissed for serious fault for having misused his personal computer by recording photographs of a pornographic nature and videos of other employees taken against their will. He applied to the labour court, contesting the lawfulness of his dismissal.

The Nîmes Court of Appeal upheld the employee’s claims on the basis that, according to the bailiff’s records, the incriminated files were on the hard disc of the employee’s computer in a folder entitled “My documents” and that opening them without the presence of the interested party was not justified by any particular risk or event that would justify the violation of his privacy, so that opening them could not justify his dismissal.

The Supreme Court criticised the position taken by the judges on the merits. Firstly, it recalled that “files created by an employee using computer equipment made available to him by his employer for work requirements are presumed to be of a professional nature so that the employer is entitled to open them without the presence of the employee unless the employee has identified them as personal.”

The highest national court then stated clearly that “simply calling a file ‘My documents’ is not enough to confer a personal nature on it.” (Supreme Court Social Affairs Division, 10 May 2012, No. 11-13884).