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Employee's private emails used as evidence to dismiss employee

On June 19, 2013, the French Court of Cassation ruled in favour of a company for having dismissed one of its employee's (M. X) on the grounds that he was involved in unfair competition. M. X's On June 19, 2013, the French Court of Cassation ruled in favour of a company for having dismissed one of its employee's (M. X) on the grounds that he was involved in unfair competition. M. X's wrong-doing was based on email exchanges between him and a competitor that were found on his computer's hard drive and used against him as evidence in court.  M. X argued that this evidence was inadmissible because it was unlawfully obtained by the company in violation of his right to privacy and to the secrecy of correspondence. M.X claimed that the emails were private and that the company had made a copy of his computer's hard drive without informing him and not in his presence.

The French Court of Cassation ruled in a landmark decision (the 2001 "Nikon case") that "an employee has the right to the respect of his private life – including the right to the secrecy of correspondence – on the work premises and during working hours". Since then, the Court of Cassation has refined its position and progressively balanced the right to privacy of employees against the right of employers to monitor the activities of their employees. Unless marked by the employee as "private", the documents and files created by an employee on a company-computer for work purposes are presumed to be professional, which means that the company can access those documents and files without the employee’s presence. However, an employer cannot access files marked "private" stored on the hard drive of a company-owned computer without the employee’s presence or informing the employee, unless there is a particular risk or event for the company. It is also presumed that employees use the company's emailing system for professional purposes. Thus, an employer can access an employee's email inbox without his/her presence, with the exception of those that are marked "private" in their subject line, or that are stored in a sub-folder of the inbox named "private" or "personal".

In the given case, M.X challenged the validity of the emails used against him in court on the grounds that those emails originated from his private email inbox, which he had transferred and stored onto his work computer. M.X argued that the company had captured those emails without informing him and that a copy of the hard drive was made in his absence. But for the Court of Cassation, the simple fact that documents or emails, stored on the hard drive of a company-owned computer, originate initially from an employee's private email inbox does not render those emails private. What really matters is whether there is a clear indication that this email is private, such as the word "private" appearing in the subject line, or the fact that it is stored in a folder marked "private".

Since the 2001 Nikon case, the Court of Cassation has made a continuous effort to refine and, in some circumstances, narrow the scope of the right to privacy in the workplace with a view to reaching a fair and balanced approach to privacy in the employment context. Following this ruling, employees should be cautious when storing private emails or documents onto their work computers as they will automatically be considered professional, unless there is an unambiguous indication that they are private. Thus, the risk is high that employees may get dismissed when suspected of unlawful actions because their employer has extensive powers to access all the data stored on their work computer and to use any potentially incriminating information as evidence against them. Simultaneously, employers have an obligation under privacy and labor laws to inform employees about the collection and use of their personal data. This decision illustrates the importance of drafting clear and unequivocal privacy policies explaining to employees how to use the IT equipment and devices that the company puts at their disposal in accordance with the company's internal rules, and how to protect their private data.

Click here to access the Court's decision (in French).

Click here for more information on the use of technology against the right to privacy under French law.

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