In a judgment rendered on 20 March 2014, the Luxembourg District Court (Tribunal d’Arrondissement de Luxembourg) allowed an employer to access a dismissed employee's emails labelled "PRIVATE CONFIDENTIAL" and "Private - New Year's Drink".
This decision is contrary to Luxembourg law on the subject which, it should be recalled, provides that an employer only has the right to view emails received or sent by an employee on his or her professional account which are not expressly identified as being "private". Indeed, the employer is deemed to be the sender and/or the recipient of non-private messages and thus has the right to open them in order to ensure follow-up, provided certain conditions are met.
Despite the fact that, in the case at hand, the emails were clearly marked as private, the court found that the employer should not be held liable for violation of the applicable statutory provisions on the protection of privacy and the confidentiality of correspondence, as there was some doubt as to its intention to violate these provisions. In this regard, the court cited the fact that the emails were sent by persons affiliated with a company with which the employer had business dealings. Moreover, with respect to the message entitled "Private - New Year's Drink", the court found that the title of the email gave the impression that it was an official invitation addressed to more than one person.
This decision undoubtedly strengthens the employer's right to monitor electronic communications. Nonetheless, it is subject to a number of caveats. Firstly, the court only allowed private emails to be opened under specific circumstances (in particular, messages sent by persons with whom the employer has business dealings). Secondly, the decision does not release the employer from its duty to fulfil the usual conditions necessary for the monitoring of employees' electronic communications, primarily the need to obtain a prior authorisation from the CNPD and to put in place a clear policy on the subject (conditions which were a priori met in this case). Finally, it should be noted that the judgment was rendered by a lower court and thus may still be appealed. Stay tuned!