SMS messages sent or received by an employee using a mobile telephone made available by the employer for professional use are presumed to be professional in nature. The employer therefore has the right to consult them without the employee being present unless they are identified as being personal.
SMS messages which are not identified as personal by the employee may be produced in legal proceedings without this being considered to be an unfair procedure under the terms of Article 9 of the Civil Code, and 6§1 of the Human Rights Convention.
This solution is not new in itself and is in line with the case-law of the Social Chamber with regard to professional messaging.
It is, however, the first ruling on the question of SMS messages. It should be noted that the Commercial Chamber referred this case to the Social Chamber for its opinion on the matter, and repeated the terms of the opinion of 13 November 2014.
In practical terms the solution raises some difficulties.
It is in fact difficult to see how an SMS might be identified as personal, unlike emails and computer files. This was in fact one of the questions raised by the company, which emphasised that an SMS does not have a “subject” field.
The Cour de Cassation did not give any instructions, but one idea would be to add the reference "personal contact" to the name of the person to whom the message is sent. Some smartphones moreover now allow the possibility of inserting a "subject" line preceding the message.
It should be noted that in the opinion dated 13 November 2014, the Social Chamber of the Cour de Cassation specified that the employer may monitor SMS messages sent or received using a mobile telephone made available by the employer for professional use, even if the company’s internal regulations prohibits personnel from using their communication tools for personal purposes.