Cass. Soc. December 20, 2017, 16-19609

The information found on an employee’s Facebook private profile cannot be used as evidence by his employer against him, even if the employer has been aware of it thanks to a colleague’s business phone.

The right to respect of private life is affirmed by both the French Constitution and the European Convention on Human Rights. Yet, a survey in 2013[1] revealed that 35% of the recruiters admit that they have already refused a candidate due to the information they found about him on the social networks (alcohol consumption, provocative pictures...).

This use of the social networks in the frame of the recruitment process does not create much litigation, probably because the candidate will never know why he really has been refused. However, at the executing or termination stage of the contract, this is a much more important source of disputes.

This case concerned a woman who was victim of several assaults after leaving work. She claimed that her employer took advantage of her psychological fragility at that time to pressure her to accept a transfer. The employer tried to prove that she was not as vulnerable as she pretended to be, by using information from her Facebook profile.

Could the employer offer information taken from social networks as evidence?

The High Court consistently considers that any evidence obtained unfairly or by violating the employee’s personal privacy cannot be used by the employer, whether it is to sanction or to defend himself in the courts against the employee.

In several cases, the High Court ruled on the private nature of the information posted on the social networks by the employee. Can information shared by the employee with quite a few people be considered as personal? When the employee shares information on social networks, does it mean that he felt it was public enough to be disseminated?

To resolve this issue, the High Court had to make a distinction between the information published on a public profile and the one published on a private profile. According to the High Court, a profile must be considered as public when its content is accessible to everyone without any authorization. If the employee’s profile is public, his employer can use all what is found therein as evidence against him. On the contrary, when the profile is private the employer cannot use what he has found on it.

In the present case, the Facebook profile was private. The employer tried to circumnavigate this by mobilizing another case law of the High Court which assumes that the information contained on a professional equipment made available to the employee by the company (computer workstation, business phone) are not private, except if the employee has clearly identified it as being private, for example a file in a folder named “PERSONAL”. Here, the employer pretended that the information could not be considered as private because he had been aware of it thanks to another employee’s business phone. But this argument had two weak points. Firstly, the information shared on social networks is not really “contained” in the business phone, which is just a means to access to it. Secondly, the business phone user was not the employee concerned by the information taken from Facebook. For these reasons, the Court did not rule in his favor and said that the information was private.

Nonetheless, it is interesting to note that, in a more recent case, the Court of Appeal of Toulouse considered that offensive messages published on Facebook by an employee from his work computer were not private. The employee had left his work computer with the Facebook window open at the sight of his employer. This judgment shows how thin the line is between what is private and what is not.

What sanction does the employer who used private information against his employee incur?

If the judge considers that the information has been obtained in violation of the employee’s private life, he will exclude it from the debates and, consequently, the employer will be unable to use it. For example, if the private information revealed an inappropriate behavior that was subsequently sanctioned, the employer must be able to prove it in another way. If he is not, the sanction might be annulled by the judge or, if the sanction is a dismissal, he might rule it as unjustified.

Here, the employer was unable to prove that the assaults did not have psychologically weakened the employee. Thus, the Court of Appeal has sovereignly considered that the employee's state of distress was real and that the employer took advantage of it. Yet, if the employer had been able to use the information found on Facebook, the verdict would certainly have been different.

Lastly, if he has been harmed by the violation of his personal privacy, the employee can also ask the judge to condemn his employer to pay him damages.