In a ruling dated 16 May 2013, the French Supreme Court held that emails sent and received by an employee using the computer made available by the employer for the purposes of his or her work are presumed to have a professional nature, even if the employee’s electronic address does not include the name of the company (French Supreme Court – Social Division, 16 May 2013 – no. 12-11.866).

The French Supreme Court thus recalled that an employer is entitled to open an employee’s emails outside that person’s presence unless the employee has marked them as being personal. By so holding, it quashed and reversed the decision of the Court of Appeal of Pau which had considered a bailiff’s report on the content of an employee’s electronic mail system in the latter’s absence to be unlawfully obtained evidence.

In that case, the company La Métallerie had filed a complaint against an employee who had resigned on grounds of customers poaching and unfair competition during his notice period. To obtain evidence of the unfair behaviour reproached its employee, La Métallerie had a bailiff carry out a report on the content of the employee’s electronic messaging system. Such email system was accessible from the home page of the company’s website on which an icon appeared with the employee’s name. The employee’s electronic address did not contain the name of the company, but the employee’s surname and name, followed by “@orange.fr”.

This decision is in line with former case law from the social division of the French Supreme Court, which generally considers that any file or document contained in an employee’s computer is deemed professional as a result of which the employer is entitled to have access thereto in the absence of the employee (Social Division, 10 May 2012 no. 11-13.884).