Technology is ever-changing, and while in the past evidence of an employee’s misconduct was based mainly on “physical” witnesses and observations, employers might now be tempted to use data obtained through social media as evidence against their employees.

At the present time the French Supreme Court has not had many occasions to clarify the manner in which evidence obtained by French employers through the Facebook website (and more particularly on the “wall” of an individual) should be treated by the courts.

However, many cases have already been submitted for consideration by courts of appeal, most of which have up to the present decided to draw a line between what can be considered as public (and therefore legitimately available for use as evidence against an employee given that no expectation of privacy is permitted) and conversely what must be considered as private (and therefore not allowed as evidence).

In the present case, an employee had terminated her employment contract, claiming the equivalent of constructive dismissal. She lodged a claim before the employment tribunal, and then before the court of appeal.

The employer challenged the former employee’s claim, and to support its argument, the employer produced as evidence information which had been posted by the employee on her personal Facebook account.

The employer obtained access to such information using the business smartphone which had been provided to another employee of the company for the purpose of his duties. The employer instructed a bailiff to borrow the business smartphone and to transcribe the content of the information onto a report.

The employer claimed that it had legitimate access to the information because it was stored on a business smartphone allocated to an employee for the purpose of his duties, and therefore that such data should be deemed to be professional.  This was in line with a well-established principle under French law that documents stored on professional devices should be treated as professional and therefore may be produced as evidence, unless the employee has marked such document as private or personal.

However, the French Supreme Court denied the company’s argument, and held that even though the data obtained had not been identified as personal or private, such data could not be produced as evidence because it had been posted on the employee’s personal Facebook account, which she had rendered private. Only the employee’s “friends” on Facebook were entitled to access such data.

The French Supreme Court held that since the employer was not authorised to access the employee’s personal Facebook account, such access constituted a disproportionate and unfair infringement of the employee’s privacy).

Therefore, a distinction should be made when using information posted on Facebook in the context of relations with an employee:

  • employees’ accounts marked as “public” can be freely accessed and produced as evidence in certain situations (provided certain conditions are fulfilled);
  • however, employees’ accounts marked as private may not be accessed, even via a professional device.