France: Video Recordings Obtained Without Employees’ Prior Notification and Personal Email may be Admitted as Evidence in Court

In 2 rulings last 26 February 2025, the French Supreme Court decided that a video recording made without an employee’s prior notification and an employee’s personal emails, while in principle inadmissible because they violate employees’ right to privacy, could be admitted as evidence in court if it was indispensable to the company’s right to protect its confidential business information.

In the first case, a company had sought to produce the transcript of a conversation based on a video recording proving that an employee had been providing highly confidential business information to another company. In the second case, a company wished to produce emails sent by an employee from his personal email address to prove the employee had been setting up a competing business and sharing confidential business information with third parties who could be in contact with the company’s competitors.

In both cases, the evidence was per se inadmissible because the employee, in the first case, had not been informed in advance that he was being recorded. In the second case, the emails were personal in nature because they were sent from the employee’s personal email address. Nevertheless, in both cases, the Supreme Court ruled that such evidence could be admissible if the company had no other way of proving the misconduct and if such violation of the employee’s privacy was proportionate to the defense of the company’s legitimate interest to defend its confidential business information.

These 2 rulings are in line with a greater flexibility in the admission of evidence shown by the French Supreme Court in recent months. However, this should not be considered too widely as the appreciation of whether such type of evidence is admissible or not is dependent on the court’s case-by-case analysis.

Key Action Points for Human Resources and In-House Counsel

Review your company policies to ensure that employees and Works Councils, if any, have been properly informed of all workplace monitoring tools to avoid any evidence obtained via these tools being considered per se inadmissible.