FRANCE: can employers capture screenshots or videos of employees when they are on the phone with clients?

For staff training or even performance appraisal purposes, employers may wish to record employees' "IT actions" when they are on the phone with clients.

Are there any specific rules employers should be aware of before doing so?

WHAT ARE WE TALKING ABOUT?

The situation is quite common: an employer wants to capture, through a screenshot or a video, the images that appear on employees’ computer screens while recording their professional telephone conversations. Unsurprisingly, this kind of monitoring may be intrusive as it can lead employers to misappropriate employees’ personal information (e.g. confidential passwords).

That is why the CNIL, the French data protection watchdog, has issued guidelines, on September 17, 2019, to help employers understand their rights and obligations in the context of the GDPR.

In a nutshell, given the risk of intrusion into employees’ private life, the CNIL considers that combining telephone recordings and image recordings may be disproportionate when used for purposes other than training. The CNIL’s decision is based on article L.1121-1 of the French labor code, which provides that “no one may restrict individuals’ rights or individual and collective freedoms, unless such restrictions are justified by the nature of the task and proportionate to the aim pursued”.

Interestingly enough, the CNIL makes a distinction between screenshotting and video-recording.

SCREENSHOTTING SHOULD BE AVOIDED

The CNIL considers that capturing screenshots of employees’ computer screens is not a valid way to help them enhance their professional skills. The rationale behind this decision is that taking a fixed picture of an employee’s isolated action on his/her computer does not accurately and faithfully reflect his/her work.

VIDEO-RECORDING MAY BE AUTHORISED

On the contrary, video-recording an employee’s screen may be a valid training tool as it gives employers an opportunity to monitor employees’ IT actions on a continuous basis and accordingly to have a reasonable idea of their work. However, the CNIL has set several conditions for the video-recording to be valid, including:  

• Video-recording should be limited to staff training and to employees who need training;
• Employees must be informed in advance that the images that appear on their computer screen may be video-recorded and that they have no reasonable expectation of privacy;
• Video-recording should be limited to the IT interface used during the training session;
• The Video-recording system should be active only during professional telephone calls: it should be activated when employees pick-up the phone and be disactivated when they hang-up;
• Employees should only be trained on the basis of their own videotapes. Other videos can be used only if they have previously been anonymized;
• Access to recording should be limited to authorized persons only;
• Specific guarantees for telephone conversation recordings should be implemented (e.g. employees should be informed in advance that their professional calls can be recorded; employees’ reps. should have a protected telephone line that is unlikely to be recorded).

We would be happy to help your business adjust to this new regulation.