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09 September 2015
Although employees are subject to the authority of their employer while in the workplace and during working hours, they continue to enjoy a right to privacy and confidentiality with regard to electronic communications. The Criminal Chamber of the Court of Appeal(1) recently reiterated the penalties that employers may face for violating this right. The case highlights the importance – for both parties to the employment contract – of the distinction between personal and professional emails.
In this case, the former employee of a domiciliary company – who had been dismissed during the notice period – had her former employer and the two managers of the company summoned to court for accessing and reading three private messages sent to her work email address.
The action was based on the following alleged offences:
The employer argued that the emails had been accessed only due to the need to ensure business continuity during the employee's absence. One of the emails had no title, while the other two were entitled "Privé-Drink Nouvel AN" ("Private New Year's Drink") and "PRIVATE CONFIDENTIAL".
At first instance, the tribunal held that none of these emails had a strictly private nature and therefore acquitted the employer and the two managers. In reaching this conclusion, the tribunal examined the origin of the electronic communications and inferred that since the emails were sent from addresses relating to the employer's "business relationships", "continuous professional relationships" and "professional relationships",(7) the employer could not have been aware that they were of a private nature when accessing them.
According to the tribunal, it was also clear that the "Private New Year's Drink" email was addressed to a "multitude of recipients" and was not sent "in an exclusive and personal way" to the employee. Therefore, it did not constitute private correspondence.
This judgment was partially amended by the Court of Appeal, which focused on the titles of the disputed emails.
In the preamble to its judgment, the Court of Appeal reiterated that emails received or sent via an employer's electronic communication system are presumed to be of a professional nature. However, this is a rebuttable presumption and does not allow the employer to read the employee's personal emails. Accordingly, the court analysed each of the three contentious emails to determine whether the presumption of their professional nature could be rebutted.
The court held that the first email could not be regarded as private correspondence due to its lack of a title, as a title would have allowed the employer "to glimpse its nature".
As for the "Private New Year's Drink" email, the court surprisingly held that neither its title nor content implied a private nature. As such, the court adopted the argument of the public prosecutor, who contended that the title of the message did not "reflect unequivocally" that it was private. However, both the requisitions of the prosecution and the judgment failed to specify why the title of this second message was equivocal in this case.
According to the court, the presumption of the professional nature of these two messages was not rebutted. The employer was therefore entitled to read them, in accordance with the authorisation issued by the National Commission for Data Protection with respect to the monitoring of employee use of workplace computers (including the Internet and professional email systems).
As for the third email, the court held that "its private nature results from the terms of the title of the message" – that is, "PRIVATE CONFIDENTIAL". Notably, the word 'confidential' was more decisive than 'private' in establishing the private nature of the correspondence. The court clarified that:
"by indicating not only 'PRIVATE' but especially 'CONFIDENTIAL', the sender clearly targeted [the employee] as the sole recipient of the message, so that the private nature of the email was established."
Both the employer and the manager who read the email were convicted of unlawfully processing personal data and illegally intercepting and reading the employee's private email without her consent.
The presumption of the professional nature of an email can therefore be rebutted if its title unequivocally highlights its private nature. In such case the message will normally fall outside the scope of the employer's control.
The Penal Code(8) provides that once it has been established that a crime or criminal offence has been committed on behalf and in the interests of a legal person by one or more of its legal bodies or directors (at law or in fact), criminal liability can be accorded to such legal person, exposing it to a fine – as in the present case.
The court held that the fact that one of the managers had read the third contentious email "in the workplace and on behalf of the company" constituted an offence committed in the name of the employer and in its interests. As such, the employer was held criminally liable as a legal person. As perpetrators of the criminal offences, the employer and relevant manager were both fined €500.(9)
However, the Court of Appeal did not recognise the alleged privacy breach or violation of the secrecy of correspondence, because the email did not involve a "sealed envelope" or "postal letter" within the meaning of the Criminal Law.
The employee received no compensation for the non-pecuniary damage that she claimed to have suffered as a result of the employer reading her private email. To obtain such compensation, she should have proved actual and direct damage resulting from the offences committed by the employer and manager.
Following the April 28 2015 criminal court ruling, the following points should be borne in mind:
For further information on this topic please contact Guy Castegnaro or Ariane Claverie at Castegnaro by telephone (+352 26 86 82 1) or email (email@example.com or firstname.lastname@example.org). The Castegnaro website can be acessed at www.castegnaro.lu.
(1) Court of Appeal, Fifth Chamber, April 28 2015, 159/15 V.
(2) Amended law of August 2 2002 on the protection of individuals concerning the processing of personal data.
(3) Articles L 261-1 and following of the Labour Code.
(4) Amended law of May 30 2005 on the protection of privacy in the electronic communications sector.
(5) Law of August 11 1982 on privacy.
(6) Article 460 of the Penal Code.
(7) Criminal Court, 12th Chamber, March 20 2014, 905/14.
(8) Article 36 of the Penal Code.
(9) The offences exposed the employer to a fine of up to €250,000, while the manager – as originator of the offences – was exposed to a prison sentence of between eight days and one year and a fine of up to €125,000.
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