(Commercial Law Chamber, Supreme Court, February 10, 2015 n°13-14779)

In the middle of a litigation opposing two companies, one of them asked for judicial permission to have a bailiff report on the content of the professional mobile phone of one of its employees.

The issue presented before the court was whether the protection offered to private correspondence would prevent the employer from having access to these text messages. For the first time the Commercial Law Chamber of the French Supreme Court held that the text message sent or received by an employee through his professional mobile can be read by the employer. It is solely when the text message is identified as personal that such access is limited, i.e. it can be accessed but either in the presence of the concerned employee or the latter being duly invited to be present.

With this decision, the Commercial Law Chamber endorsed a decision similar to the one already adopted by the Social Law Chamber of the French Supreme Court regarding documents on employees’ professional computers. These documents are indeed presumed professional, and the employer can have access to them without the employees’ presence unless identified as personal.

This solution is now extended to text messages.