26 November 2019 | By Michael Thaidigsmann
Labour Law
France: Communications exchanged via private messaging apps at workplace remain confidential, court rules
France’s Supreme Court has further strengthened employees’ right to exchange private messages at the workplace.
France’s supreme court has further strengthened employees’ right to exchange private messages at the workplace. In a recent judgment, the Cour de cassation ruled that where messaging apps are installed on a company computer and messages of a private nature are being exchanged, including between employees of the same company, management does not enjoy access to them without giving prior notice to the employee concerned.
Messaging apps are subject to privacy rules much in the same way than private email accounts, the court found. Moreover, information retrieved by employers from private accounts cannot be used against employees in disciplinary or dismissal procedures.
France’s highest appeals court thus reaffirmed previous rulings and held that under French law, as well as under Article 8 of the European Convention on Human Rights, employees’ rights to privacy extends to communications exchanged at work. Moreover, France has one of the strictest laws among EU countries in this regard.
In principle, French companies are entitled to access their employees’ workplace computers and professional mailboxes. However, if they wish to access private accounts and retrieve information from them, the person concerned must receive prior notice. Messages marked as private by employees are protected and only communications not marked as such can be accessed in their absence. This applies even where an internal policy is in place that bans employees from using email accounts for personal reasons on company premises.
Whilst professional mailboxes can be monitored subject to certain restrictions, employers may not pry on private mailboxes of their employees, even when these are accessed from a workplace computer or when the data is stored on the company’s servers. This equally applies to messaging apps such as WhatsApp, Facebook Messenger or MSN.
French law also renders it necessary to inform employees and their representatives beforehand that their online activity at work might be monitored. Under EU law, notably the Data Protection Directive (EU/95/46) and the EU General Data Protection Regulation (2016/679), certain obligations are imposed on employers as to where and how employee communications can be monitored, e.g. for the purposes of the employer’s legitimate interests or for the purposes of compliance with a given legal obligation.
In the case now decided by the Cour de cassation, an assistant was on sick leave when her employer needed to access her work computer and therefore asked her to provide her access password. It was then discovered that she had exchanged documents with colleagues via MSN Messenger which were marked as confidential and which she was not entitled to access or divulge. She was consequently fired for violating professional secrecy requirements.
Attacking her dismissal in court, the employee argued that her private MSN account had been unlawfully accessed by her employers. The Cour de cassation found in her favour, considering the messaging app private in nature and hence beyond the grasp of the employer.
In a 2011 ruling, the same court held that where an employer legitimately accesses the professional mailbox of an employee, he can only invoke its content against an employee if it is related to that person’s professional activity. In case it the communication being of a private nature, it may not be used.
Cass. Soc. 23.10.2019 : nr. 17-28448
