France: An employer can use evidence from an employee’s private Facebook account

In a decision dated September 30, 2020, the French Supreme Court (Cour de cassation) considered that the right to evidence can justify that elements extracted from an employee’s private Facebook account be produced in court, provided that such production is indispensable to the exercise of the right of evidence and that the infringement is proportionate to the goal pursued.

In the case at hand, a project manager employed by a famous clothing brand was accused of having breached his contractual obligation of confidentiality by publishing on his private Facebook account a photograph of the new spring/summer collection that had been presented exclusively to the company’s sales representatives.

The photo had been brought to the employer’s attention by another employee who was one of the Facebook “friends” authorized to access the photo on the project manager’s account.

The invasion of privacy was certain, as the photograph had been published on a private Facebook account, not accessible to the general public but only to certain, limited group of accepted persons (“friends”).

However, both the trial judges and then the Supreme Court ruled in favor of the employer’s right to evidence.

This means that the employer can use information extracted from an employee’s Facebook account in support of a disciplinary action taken against this employee.

Even if this fact constitutes an infringement of the employee’s privacy, the French Supreme Court ruled that such use is not unlawful if it is indispensable to the exercise of the right to evidence and necessary to the goal pursued, as in this case, the defense of the employer’s legitimate interest in preserving the confidentiality of its business.

Flichy Grangé Avocats is there to assist you in the implementation of these new measures. For more information, please visit www.flichygrange.com or contact comfga@flichy.com.