French court says 'oui' on workplace smut ? The Register

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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: YouTube - l'enculade medievale 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. ®

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Reading this, I am proud to be French.

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Something missing in this. I don't see where it is considered that the employee was using the employer's, the company's, resources to do this. Though the content may not have significantly impacted the "proper functioning" of the company's system, the employee was still using the company's storage, maintenence time, electricity, throughput and processor cycles for a personal endeavor.

The company is left in the unenviable position of having to house porn on their system.

Unenviable? Did you not see the part about the porn?

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Makes sense to me - as long as it doesn't affect the system in any way, why's downloading porn any different from checking your personal e-mails or reading the news?

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Originally Posted by clownboy

Something missing in this. I don't see where it is considered that the employee was using the employer's, the company's, resources to do this. Though the content may not have significantly impacted the "proper functioning" of the company's system, the employee was still using the company's storage, maintenence time, electricity, throughput and processor cycles for a personal endeavor.

What Zichao said. If you're going to fire anyone who ever used company's computers to check emails or visit a vacation site, you are not going to be left with many employees. Especially as I would hope you also fire all smokers who ever took a five minutes break for a ciggie...

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The company is left in the unenviable position of having to house porn on their system.

1- Porn is LEGAL!
2- It cannot be in worst taste than their cars...

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Originally Posted by Gilles de Rais

What Zichao said. If you're going to fire anyone who ever used company's computers to check emails or visit a vacation site, you are not going to be left with many employees. Especially as I would hope you also fire all smokers who ever took a five minutes break for a ciggie...

I don't see where it says he surfed for porn on his breaks. Email that enters the company system, that part of the spool the company pays to house and maintain - that belongs to the company. And every company has it's own rules on browsing.

Originally Posted by Gilles de Rais

1- Porn is LEGAL! 2- It cannot be in worst taste than their cars...

Perhaps it's legal, but it's still stored and accessed using company equipment (which, again, the company pays to house and maintain). Just because something is legal doesn't mean the company should pay for the activity if it's not related to the business. FAXing your buttcheeks didn't used to be illegal, but the company never should have to pay for it, or endorse that behavior.

Yes, but then we're not in Kansas any more. Here if you want to lay someone off you have to prove that their continued presence was damaging the company.

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The Pr0n Files: continued

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From Zhengzhou evening news: “A couple arrested for watching porn at home”, an incident happened 7 years ago which had triggered a national debate over the relationships and boundaries between the law and individual rights. Chongqing resident Zhao Peng (not his real name) never would have thought 7 years have passed but similar incident happened again; this time it happened to him, his cell phone had a clip of Japanese adult video which caused him being arrested. Zhao Peng tells his story on Sohu: On December 29, 2009, 9 am in the morning at Shaoxing train station, Zhejiang province, I just got off the train and was stopped by couple of policemen. They asked to see my identification and the train ticket. (All women passed by without being stopped) One policeman asked me to take out everything I have on me for inspection. I took out everything. He started to look at my cell phone. First he looked through my phone book then he looked through all the media files on the phone. Woo! There was Japanese adult video! He watched for a little while then told me that I was not going to leave. And he told me to follow him to the security office. When we got to the office, he showed me a book with this rule: person who is producing, selling and transporting pornography (CD, DVD) disks, in serious cases, is subject to be detained for 15 days and a fine of 3000 yuan; in minor cases is to be detained for 5 days and with a fine of 500 yuan. And there was another rule included videos. He said, “What do you think we should do? We can detain you.” I said, “Having AV in cell phone is not just me, 90% of men’s cell phones all have them, why don’t you inspect them? Why me?” He answered “It would have been ok if you were not inspected. Now it’s your bad luck that you were. You tell me what we should do! How about let’s detain you for 5 days first? It’s ok, it will be fast!” I did not know what to do and said “Now I am here, you are the boss, whatever you say I don’t dare to say no.” He said “then let’s follow what it says on the book.” I said, “Big brother, please let it go, I will take you out drinking tomorrow.” He said, “Don’t try to kiss up, there are people taking me out drinking everyday.” I then took out 200 yuan and put it on the table and said “That’s all I have.” He looked at it and said “200 is not even enough for the fine, just stay in jail for couple days!” After a while… “But you behaved well, so I will give you a chance. Write a self-criticism / promise note and plus that 200 yuan.” Then I wrote some words on some paper and he told me to get out. I feel deeply regret about this experience. Policemen are looking for money for the new years! Zhao Peng told the reporter that the policemen did not give him any ticket. And his cell phone was not turned on, the policemen switched on his phone without his permission. In the afternoon of January 6, the reporter and Zhao Peng called Shaoxing, Zhejiang Railway station police and asked about this incident. An anonymous staff confirmed the incident, he said, recently in order to ensure the railway safety; the railway station police are conducting random inspections on the passengers. It was not only targeting foreigners (non-locals). He also said “Carrying pornographic video allegedly propagates pornographic material, the circumstances are very serious.” As for the police issued the fine without a receipt, “We are not the same as other police, we issue fines but do not require to keep a receipt.” This was just in today, according to Netease, after Zhao Peng’s post got much attention from the media. Zhejiang Shaoxing Railway police station immediately investigated the matter. And today (January 9, 2009) Zhejiang Shaoxing Railway police station sent representative flying to Chongqing and apologized to Zhao Peng.

The porno on your cell phone can get you arrested in China | ChinaHush

I've got so much stuff on porno free speech that it's starting to clog up the board. If I'd known it was going to be so prolific I'd have put it all in the same thread. Would it be possible to amalgamate them?

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Originally Posted by clownboy

I don't see where it says he surfed for porn on his breaks. Email that enters the company system, that part of the spool the company pays to house and maintain - that belongs to the company. And every company has it's own rules on browsing.

Indeed. I was simply making an equivalence between various time wasting activities employees frequently get up to. Unless there is a noticeable disruption of the work to be done, most of it is not used as a firing offense.

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Perhaps it's legal, but it's still stored and accessed using company equipment (which, again, the company pays to house and maintain).

A fair point but, surely, the costs, if it ever could be evaluated, would count in cents. When you're browsing, you're using company's money too (electricity, internet connections etc). Same with everything else like photocopying your passport photo because you need it for a landlord. Again, company leaving some leeway is usual.


Let's not pretend that this was anything but some people doing what they thought they had to to protect "the image" of their corporation. The rest is just eye powder. And i personally don't think that Peugeot image is significantly damaged because some of its workers enjoy a bit of porn. I would expect that the guys who did the firing also watch porn from time to time... I would expect the judges who first upheld the decision and those who shot it down to all watch porn from time to time. As long as it is "within reason and within legal bounds", i think there is no case to answer...

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