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Social Media and Data Privacy in France
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Social Media and Data Privacy in France

Restrictions in the Workplace

Employers can set out the general conditions of use and restrict access to the Internet in the workplace, but they have to be cautious, as all employees have a right to privacy, even at the workplace during working time. For example, the employer may access the employees’ professional emails under very restrictive conditions. Besides, employees benefit from the freedom of speech principle, within the company and outside of it, which can only be restricted for legitimate grounds.

Can the employer monitor, access, review the employee’s electronic communications?

No specific French employment law provisions currently address issues raised by employees’ social media use.

The French labour code provides that the company’s CSE, if any, must be informed and consulted prior to the implementation of any means aimed at monitoring or controlling the employees’ activities.

However, evidence obtained from a monitoring system set up without complying with the obligation to consult the CSE or the obligation to inform employees about the processing of their personal data has been deemed justified.

Employee’s Use of Social Media to Disparage the Employer or Divulge Confidential Information

Employers may limit the use of social networks by requiring that employees do not disclose confidential information or trade secrets by implementing an obligation of confidentiality or codes of conduct.

Concerning denigration, the issue regarding whether comments made on Facebook are public or private was considered by the French Supreme Court (Cour de cassation). From this decision on, a comment on a social media may be considered private or public depending on the privacy settings of the relevant account. The more accessible a comment is, the more likely it will be deemed public and punishable, as the case may be.

Under restrictive circumstances, it may be permissible for the employer to prove the failure to comply with obligations arising from the employment contract by producing evidence from employees’ private social media accounts (Cass. soc., 30 Sept. 2020, n°19-12.058).

This case law has paved the way for a jurisprudential trend allowing evidence obtained illegally to be produced in civil trials from both sides by virtue of the right to evidence (Cass. Plenary Assembly, 22 Dec. 2023, n°20-20.648). Under certain conditions, clandestine recordings, messages from a private group, etc. can now be declared admissible by judges.

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