He then requested the suspension of the device until these formalities are carried out

The case dates back to last November, date which the Regional Directorate of France Telecom Paris was assigned by the Union South Telecom Paris for a system of wiretap of employees for the formation of teleoperators. If such a device is not per se prohibited, it requires certain rules of form information and transparency. In support of its action, the Union claimed including eavesdropping system was unlawful as to the objectives pursued, in the absence of reporting to the National Commission on computing and liberties and regular consultation of the Committee of establishment. He then requested the suspension of the device until these formalities are carried out. Without questioning the eavesdropping system, the tribunal de grande instance of Paris nevertheless suspended the implementation of the device and assessed the compliance with the obligations of information and transparency, under penalty of 3,000 euros per day of delay, one month after service of the judgment (1).

The question of wiretapping of employees is particularly sensitive in terms of privacy than on the right to work and may even arise more often that these systems are increasingly used by the companies. The regulation prohibits not such systems but subjects them to a strict supervision as well as of numerous formalities. The establishment of eavesdropping involves above all to respect the right of persons to be informed on the implementation of such a device. This obligation results including the provisions of the Penal Code and the Labour Code, which prohibits the collection of information relating to employees without their knowledge (2) and required a consultation of the Committee prior to the implementation of technical means of control of the activity of employees (3).

The law Informatique et Libertés (4) also governs the eavesdropping devices which are likely to be treatment automated of personal data. The application of this Act shall submit these devices to several obligations, in terms of prior information of the people and declaration with the CNIL. In this judgment, the Court justify the suspension of the device because of the lack of consultation of Committee establishment but also because of its non-compliance with the law computer and freedoms. The submission of the device in this Act, and all the constraints resulting, depends on the characterization of the device in treatment of personal data. In the present case, the tribunal examined the device characterizing the treatment of personal data. To do this, it went beyond the explanations of the operator, which justified the implementation of the device by a goal of training for teleoperators. Conducted eavesdropping grids have been analyzed by the Court to find the true capabilities of the treatment. Therefore, the judges found that of listening papers could affect a coefficient decreasing or increasing the amount of the variable part of sale (PVV) contribute to the determination of the remuneration. In so doing, the judges considered that the listening grid was a collection of data and also showed that the collected elements were preserved, analyzed and used without that no statement has been made to the CNIL. However this formality was not made, the tribunal could suspend the application of the device, without so deciding the question of its legality in the light of its purpose. The lack of consultation of the establishment Committee also justified the suspension of the treatment, provided that this obligation is an independent formality in subjection to the law computer and freedoms, but whose objective is the same: transparency in the use of wiretapping systems.

Such a decision illustrates the vigilance of the courts, which do not hesitate to precisely analyze the functioning of systems of tapping restore them their true legal designation. In a context of increasing the powers of the CNIL, the rigour of analysis of the courts to ensure that the application of the rules and freedoms will not avoided by those responsible for the eavesdropping.