A February 10, 2015 opinion of the Commercial Chamber of the Cour de Cassation, France’s highest civil court, should interest U.S. companies having employees in France.

According to the Cour de Cassation, employers can read text messages sent and received on electronic devices provided to their employees, if the personal nature of these messages is not indicated. As it is difficult, if not impossible, to indicate that a particular text message is personal, it seems that all text messages sent and received on a professional phone must be regarded as professional and thus may be accessed by the employer.

In this case, Newedge, a French financial company, was blaming GFI, a British financial company, of a wave of employees’ departures and even alleged it had “poached” employees, which had disrupted its activities. Newedge had obtained in November 2011 from the President of the Paris Commercial Court an emergency order authorizing a search of GFI’s premises. In support of its request, Newedge had produced text messages, and documents reproducing text messages, which had been received and sent by its former employees. GFI unsuccessfully moved to revoke the emergency order, and then appealed, but the Paris Court of Appeals upheld the emergency order on January 10, 2013. GFI then appealed in cassation.

 The principle of fairness in the administration of evidence

GFI had argued before the Court of Appeals that Newedge had produced, in support of its emergency order request, documents obtained unlawfully and unfairly, especially text messages. These messages, according to GFI, had been obtained unfairly because they violated the rights of employees, particularly their right to privacy and of secrecy of their correspondence.

Newedge had, however, argued that there was a legitimate reason to produce these documents, within the meaning of article 145 of the French Code of civil procedure, because Newedge needed to prove GFI’s alleged employee poaching and unfair competition.

GFI had argued that it was impossible to identify as “personal” text messages, as they do not have a “subject” field. Therefore, according to GFI, Newedge had procured these messages by an unfair process that made their production inadmissible as evidence. GFI further argued that the Court of Appeals had violated Articles 6 § 1 of the European Convention of Human Rights (ECHR), which protects the right to a fair trial, and Article 9 of the French Civil Code which protects privacy.

Indeed, under French law, evidence obtained by unfair means, such an invasion of privacy, is not admissible in court. According to Article 8 paragraph 1 of the ECHR, everyone has the right to the secrecy of their correspondence, and Article 9 of the French Civil Code protects the right to private life, including the right to confidentiality of correspondence.

French Employees Have a Right to Privacy in the Workplace

The Social Chamber of the Cour de Cassation had held on October, 2, 2001, in  the famous Nikon case, based on section 8 of the ECHR and article 9 of the Civil Code, that

“An employee is entitled, even at his place of work, to respect for his privacy; that this implies in particular the confidentiality of correspondence. The employer may therefore not violate this fundamental freedom by accessing the employee’s personal messages which he received on a computer made available to him for his work, and this even if the employer had  prohibited personal use of the computer.”

In addition, the Social Chamber provided a way for employees to protect the privacy of their files when it found, on October 18, 2006, that “the folders and files created by an employee on a computer made available by the employer to the employee to execute his work, are presumed to be professional in nature so that the employer can access in his absence unless the employee has identified them as personal.”

In our case, the Paris Court of Appeals had found that “the documents, folders, and files created or held by an employee at his disposal in the company office are, unless they have been identified as personal, presumed to be professional, and the employer can access them even in the absence of the employee. This includes electronic messages sent by e-mail or text messages.”

The Cour de Cassation approved the Court of Appeals because “text messages sent or received by the employee on a phone made available to her by the employer for work purposes are presumed to professional so that the employer has the right to consult them outside of the presence of the person concerned, unless they are identified as being personal. ”

The text messages produced as evidence by Newedge had not been identified as “personal” by its employees, and therefore Newedge had not obtained this evidence unfairly within the meaning of article 9 of the French Civil Code and article 6 §1 of the ECHR.

Are Text Messages Sent and Received on a Professional Electronic Device Always Professional?

Does this mean that text messages sent and received using an electronic device provided to employees by an employer are necessarily of a professional nature, since it is not technically possible to indicate their personal nature?  

The Paris Court of Appeals noted that article 4.1 on email monitoring, and article 4.3 about information collection, of Appendix 2 of Newedge’s Charter of Use of Electronic Devices, which was applicable to all employees, clearly stated that messages sent and received by employees were stored and could be searched using keywords. In addition, article 3 of the Charter stated that a message sent or received from workstations made available to the employees were of a professional nature. Furthermore, Article 11 of Newedge’s Internal Rules (Règlement Intérieur) stated that “staff members should not use the company’s communication tools for personal purposes.”

It is true that Article 3.3 of the Charter allowed for reasonable private use of professional electronic devices, but stated they were only considered as private messages with “personal” (personnel) in the subject field. The judge ruling in emergency had thus been right when he found that emails and text messages, sent and received on professional electronic devices, the personal character of which had not been stated, could be investigated by the employer for legitimate reasons.

The fact remains that it is technically impossible to identify personal text messages. Will technology eventually adapt to offer employees a way to indicate which of their text messages are private?

Meanwhile, French employees must be aware that their employer has the right to access all text messages sent and received on their business phone.

(The French version of this post can be found here).

Image is courtesy of Flickr user Kamil Porembiński under a  CC BY-SA 2.0 license. 

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