French Supreme Court recently ruled that a folder entitled “My Documents” contained in an employee workstation was not presumed to contain personal files.
On May 10, 2012, the social chamber of the French Supreme Court (“Cour de cassation”) ruled that an employee’s computer folder named “My documents” could not be regarded as a private folder.
In that case, in 2006, an employee had stored on his workstation in a folder titled ‘”My Documents” phonographic pictures and videos showing other employees, recorded without their consent. The employer opened the folder and dismissed the employee for serious misconduct in 2006. The employee then sued the employer for unfair dismissal on the grounds that his “My Documents” folder was personal and that the employer did not have the right to open it and, therefore, to use the documents contained therein to justify his dismissal.
The French Supreme Court has established the principle of the right to privacy at the workplace. In France, it is generally considered that the files created by an employee with the workstation made available by the company are of a professional nature, unless otherwise clearly indicated.
It follows that messages identified as personal or private sent or received by the employee, as well as the personal files contained in the hard disk of the employee’s computer, cannot, in principle, be opened by the employer
The key issue was there fore to know whether the name “My Documents” identified a folder as a personal folder.
The court of appeals of Nîmes found that the dismissal was unfair as the folder was personal to the employee and the employer was not entitled to open it.
The employer appealed the decision before the Supreme Court.
The French Supreme Court judges held that the title “My documents” does not clearly show the personal nature of the folder.
It thus deducted as a result that an employer is entitled to open this folder without the presence of the employee, as the files contained in an employee’s workstation are presumed to be work-related.
X v. Société Nouvelle communication téléphonique
It is generally considered that a message sent or received by the workstation made available by the company is of a professional nature, unless otherwise clearly indicated in the subject of the message or in the directory where the employee filed it; in such case this message is a private correspondence protected by the right of secrecy of correspondences, the breach of which is criminally sanctioned.52
In a decision dated October 2, 2001, the French Supreme Court has established the principle of the right to privacy at the workplace.53 The French Supreme Court ruled, “the employee has the right, even during working hours and at his workplace, to the respect of his privacy. This includes in particular the confidentiality of his correspondence; the employer cannot, without infringing this fundamental liberty, examine the personal messages sent or received by the employee on a computer tool placed at his disposal for work, and this even in the case of the employer having prohibited a non-professional use of the computer.”
It follows from this decision, confirmed in another decision, that the employer cannot read the personal messages sent or received by the employees via their workstations.54 In other words:
- The professional messages sent or received by the employee may be freely read by the employer as well as the professional files contained in the hard disk of the employee; but
- The messages identified as personal or private sent or received by the employee, as well as the personal files contained in the hard disk of the employee’s computer, cannot, in principle, be opened by the employer.
Computer files contained on the hard disk belonging to an employee are presumed to be of a professional nature, unless identified as personal.55
The French Supreme Court, in a decision dated May 17, 2005,56 further ruled that “except in case of a particular risk or circumstance, the employer cannot open the folders identified by the employee as personal on the hard drive of the computer put at his disposal, except if the employee is present or has been adequately invited to show up.”
Accordingly, pursuant to this case law, the employer may open a message or a personal file in the following conditions:
- In case of particular risk or circumstance;
- In the presence of the employee concerned; or
- If such employee has been duly informed thereof.
If the employee concerned has been duly informed but does not show up, the employer who wishes to open a personal message or file must request the authorization of the president of the court of first instance, on the basis of Article 145 of the New Code of Civil Procedure, to designate a bailiff and a computer expert to note the litigious nature of the personal message or file and to impound the computer hard drive.
52Penal Code, Article 226-15.
53Cass. soc. October 2, 2001.
54Cass. soc. October 12, 2004.
55Cass. soc. October 21, 2009.
56Cass. soc. May 17, 2005.