French Court of Cassation Decides That an Employer Can Use a Facebook Post to Dismiss an Employee

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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