In France, the guiding principle is that emails received or sent by an employee through the employer’s company email account are considered “professional”, which means that the employer can access and read them. However, French employers must be cautious before accessing their employees’ professional emails because they are not permitted to access emails that have been identified by the employee as being “ personal” or “ private”. Recently, the French Supreme Court, in a decision of June 19th, 2013 (n°12-12138: http://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000027596663&fastReqId=1099388011&fastPos=1) addressed this issue in detail.
As background, the distinction between “professional” and “personal” or “private” emails received or sent in the course of business using the company’s information technology or systems is due to the fact that French case law recognizes that employees have a right to privacy, even at the workspace during working hours. As a consequence, employees cannot be banned from using the company’s IT for personal use. The French Data Protection Agency (CNIL) specifies that employees have the possibility to use for personal purposes the IT put at their disposal by their employers, provided that such personal use of the IT is “reasonable”.
If in most cases, given that generally employees mention, in the title of the email, that it is personal, it is quite easy for employers to determine whether an email is professional or personal and therefore whether it can be read or not. Sometimes, however, it is much more difficult.
In the aforesaid decision, an employee brought an action against his employer alleging that the employer wrongfully terminated his employment based on unlawfully accessed personal email files that were stored on his office computer, which was a breach of the employee’s privacy. Specifically, the employee stored his personal emails received and sent from his personal email account on the hard disk of an office computer put at his disposal by his employer. The employee did not identify these saved files as his personal emails.
The employer, suspecting that the employee was working for a competitor, terminated him. To prove that the termination was grounded, the employer put forward that the investigation led by an IT expert of the office computer’s hard drive contained evidence showing the fault of the employee, particularly in the emails that were saved on the computer.
The Court of Appeals ruled that the termination was unfair because the emails had been collected unlawfully by breaching the employee’s privacy, but the French Supreme Court overruled the Court of Appeals, finding that a file created by an employee using the employer’s IT put at his disposal by the employer to carry on his duties is presumed to be professional, unless the employee identifies it as being personal.
The French Supreme Court concluded in its decision that emails and files stored on the professional hard disk of the employee are not automatically considered personal just because they initially come from the personal mailbox of the employee. Those files and emails can therefore be used for a disciplinary termination.
In France, employees should be cautious about what they do with their employer’s IT (including when they put their personal files on employer devices), but employers should also be cautious when determining whether or not an employee’s files or emails are professional or personal.