On September 30, 2020, the French Court of Cassation (“Court”) ruled in favor of an employer that dismissed an employee because of the contents of a Facebook post (the decision is available here, in French).  In particular, the employee in this case posted a photograph of a new clothing collection of the employer on a personal Facebook account.  This post could be seen by the employee’s “friends”, including those who worked for competing firms.  As a result, a co-worker who was a “friend” of that employee sent the post to the employer.  Posting the photograph was in breach of the employee’s confidentiality obligations under the employment contract.  Thus, the employer asked a bailiff to access the employee’s Facebook account in order to obtain proof of the employee’s actions.  The employer subsequently dismissed the employee for gross misconduct.

According to the Court, the way in which the employer obtained a copy of the post was “not disloyal”, because a co-worker had sent it to the employer on a spontaneous basis.  However, by presenting the Court with a copy of the post and information about the employee’s “friends” without the employee’s consent, the Court found that the employer had invaded the employee’s privacy.

The Court nevertheless decided that an employer may use evidence collected in violation of an employee’s right to privacy to dismiss an employee because that evidence is “essential for the exercise of the right to evidence and is proportionate to the aim pursued – namely, the defense of the employer’s legitimate interest in the confidentiality of its business”.  Thus, an employer’s right to collect evidence for a “fair trial” (Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”)) may trump an employee’s right to privacy (Article 8 of the ECHR), provided the collection is – as the Court deemed in this case – necessary and proportionate.

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Photo of Kristof Van Quathem Kristof Van Quathem

Kristof Van Quathem advises clients on information technology matters and policy, with a focus on data protection, cybercrime and various EU data-related initiatives, such as the Data Act, the AI Act and EHDS.

Kristof has been specializing in this area for over twenty…

Kristof Van Quathem advises clients on information technology matters and policy, with a focus on data protection, cybercrime and various EU data-related initiatives, such as the Data Act, the AI Act and EHDS.

Kristof has been specializing in this area for over twenty years and developed particular experience in the life science and information technology sectors. He counsels clients on government affairs strategies concerning EU lawmaking and their compliance with applicable regulatory frameworks, and has represented clients in non-contentious and contentious matters before data protection authorities, national courts and the Court of the Justice of the EU.

Kristof is admitted to practice in Belgium.

Photo of Anna Oberschelp de Meneses Anna Oberschelp de Meneses

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate…

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate international data protection law projects.  She has obtained a certificate for “corporate data protection officer” by the German Association for Data Protection and Data Security (“Gesellschaft für Datenschutz und Datensicherheit e.V.”). She is also Certified Information Privacy Professional Europe (CIPPE/EU) by the International Association of Privacy Professionals (IAPP).  Anna also advises companies in the field of EU consumer law and has been closely tracking the developments in this area.  Her extensive language skills allow her to monitor developments and help clients tackle EU Data Privacy, Cybersecurity and Consumer Law issues in various EU and ROW jurisdictions.