The legal context

Issues regarding the ability of an employer to access messages and files exchanged by its employees using employer-supplied messaging networks or, more generally, devices placed at their disposal, occur quite frequently in the workplace and have given rise to a significant amount of case law.

In principle, and from a French employment law perspective, the relevant court decisions have laid down strict principles regarding employers’ access to emails and files on professional devices placed at the disposal of employees, under which employees’ emails and files identified as “personal” or “private” or stored in a folder with a similar title cannot be retrieved or opened. However, emails and files which are not identified as such can be read by the employer since the use of such devices is presumed to be for professional reasons. Failure to comply with these requirements may, in particular, result in the inability to invoke the information obtained through such means as evidence before a court, as well as the award of damages and penal sanctions (in particular, sanctions resulting from violation of the secrecy of correspondence).

In this context, what happens when an employer wishes to access text messages received or sent by an employee via his/her mobile telephone placed at his/her disposal for the performance of his/her duties? Do similar requirements apply to such access?

The facts

In a recent decision of the Supreme Court dated 10th February 2015, a company operating in the financial sector and suspecting that a competing company was poaching a large number of its employees, resorted to verifying text messages exchanged over the professional mobile phones of its former employees for the purpose of providing evidence for its claims. For such purpose, the company filed a request before the commercial court requesting access to the employees’ text messages and obtain a baillif’s report certifying that the alleged conduct has effectively taken place.

The Supreme Court ruled that the written text messages, called SMS, sent or received by an employee by means of a phone made available to him/her by the employer for the performance of his/her duties are presumed to have a professional nature, meaning that the employer is entitled to access to such messages without the presence of the employee concerned except in the circumstance where the messages are identified as personal. Therefore, the Supreme Court concluded that, since the messages in the present case were not identified as personal, the fact that the employer accessed and used such messages before a court was lawful and did not constitute an unfair means of obtaining evidence.

The meaning of the decision

This solution is consistent with the decisions rendered on the matter of emails, thus unifying the legal regime applicable to the abilities offered to the employee for accessing employees’ messages. In any case, it should be noted that, even though the employer is allowed to access such messages in these circumstances, it will not be authorised to invoke any personal material that could emerge from it (for example, if the content of the message in question is relating to an intimate conversation). Finally, the difficulties for an employee to concretely identify a SMS as personal can be mentioned (text messaging does not contain a subject field). However, although the Supreme Court has not ruled on this specific point, it would appear that a simple personal mention at the beginning of the SMS would suffice in order to block the access from the employer. It remains true that an employee has no control over the content of a message sent by a third person, and therefore such issue will have therefore to be further clarified by subsequent case law.

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