French court says 'oui' on workplace smut
Dirty downloader comes out clean
By John Ozimek •
Posted in Law, 8th January 2010 11:06 GMT

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 60 pornographic images and two files featuring animal sex (presumably what one-time President Charles DeGaulle referred to as "le chien au lit").

For those readers without access to a dictionary of french smut, the practice of "enculade" is illustrated here (NSFW) with - yes - Playmobil assistance.

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 UK 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.

While this ruling, announced on December 8, 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 (shush) on workplace porn just that bit more liberal than the UK one, where the default assumption appears to be that smut is de facto evidence of sexual harassment (a bad thing!) or inappropriate conduct (also a bad thing) and in either case, perfectly good grounds for dismissal.

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 UK law, as presently constituted, Monsieur X would face criminal charges and almost certainly be fired – with little hope of redress.