French court says “pourquoi pas?” to work-place smut

Published 12 January 2010

French court rules that Peugeot was wrong to fire an employee who used his work PC to download pornography; the court said that the mere act of downloading smut is not enough to have an employee fired; the hold for the company, the court said Peugot had to show that that the downloading impacted on performance because the employee was busy doing things he should not during his working day, or that the downloads were so big that they interfered with the proper functioning of the system, or came with viruses attached, or that the content was itself illegal (featuring child abuse)

In a surprise ruling last month, France’s highest court — la Cour de Cassation — ruled that an employee was wrongly dismissed for downloading smut to their work PC. The employee, known only as “Monsieur X,” was fired by Peugeot Citroën Automobiles in June 2002, after an internal investigation found that he had saved to hard disk a folder called “enculade43.zip,” which contained sixty pornographic images and two files featuring animal sex.

John Ozimek writes that Peugeot justified the sacking on the grounds that it had put out various guidance notes over the years exhorting employees to “refrain from attacks on the personal dignity of their co-workers, and to exhibit the highest moral standards at all times.” Their decision was upheld first by le conseil de prud’hommes (equivalent of a U.K. employment tribunal) and again in March 2008 at the Rennes court of appeal. The latter noted that by storing these images on disk, the employee was effectively harassing other employees, as well as running the risk of damaging his employer’s image.

He then took the matter to the Cour de Cassation. The two chief grounds for contesting his dismissal were that Peugeot had no right to access his files, as they were personal; and that passive use of an IT tool for limited personal ends was not a contravention of his terms of contract, so long as this practice did not impact his performance.

To the surprise of many, the second argument was upheld. Ozimek notes that while this ruling, announced on 8 December 2009, would appear to give French employees a green light to download filth and frolics to their hearts’ content, the court was clear that it has limited application. If Peugeot had been able to demonstrate that the downloads had impacted on performance in any way, because the employee was busy doing things he should not during his working day, that would be grounds for dismissal.

Equally, it was determined that size mattered: if the downloads were so big that they interfered with the proper functioning of the system, or came with viruses attached, that also would be grounds for dismissal. Finally, if the content was itself illegal (featuring child abuse, perhaps) or if the terms of employment had specified more closely what an employee could — and could not — download, then Peugeot might have succeeded.

As it is, none of the above appear to have been the case, leaving Monsieur X in the clear — and in line for the receipt of (modest) damages.

This leaves the French position on workplace porn just that bit more liberal than the U.K. one, where the default assumption appears to be that smut is de facto evidence of sexual harassment or inappropriate conduct, and in either case perfectly good grounds for dismissal.

Ozimek notes that, in addition, since the inception of the law on extreme porn, the possession of images involving acts of extreme violence in a sexual context or animal porn are criminal in and of themselves. The very first conviction for extreme porn was of an individual found to have downloaded animal porn on to his workplace computer. Under U.K. law, as presently constituted, Monsieur X would face criminal charges and almost certainly be fired — with little hope of redress.