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WhatsApp messages sent from a professional mobile phone are deemed professional messages

WhatsApp messages sent from a professional mobile phone are deemed professional messages

In line with previous decisions from the French Cour de cassation, the Paris Court of appeals decided that WhatsApp messages sent by an employee from his professional mobile phone are presumed professional. (1)

In a decision issued on April 20, 2023, the Paris Court of Appeals decided that since the download and use of WhatsApp are not related to a personal email address but only to a phone number, i.e. the number of the professional phone of an employee, the same reasoning from the Cour de cassation regarding SMS communications should be applied.

In its February 10, 2015, the Cour de cassation held that “short message service text messages (SMS) sent or received by the employee using the telephone provided by his employer to accomplish his task, are presumed to be professional so that the employer may consult them in the absence of the employee, unless they are identified as personal.” (2)

These decisions follow a well established case law in which the courts have held that documents and messages created and exchanged by employees using device provided by their employer (computer, mobile phone, tablet) are presumed to be professional.

In 2006, the Cour de cassation held, regarding documents stored on a professional computer, that “the files and documents created by an employee using the device provided by his employer to perform his duties are presumed to be of a professional nature, so that the employer may access them in his absence, unless the employee identifies them as personal.” (3) This professional presumption was even extended to the personal USB key of an employee connected to her professional computer. (4)

These cases were decided in matters involving employers against former employees sued for suspected unfair competition behavior, or for stealing company documents or commercial secrets, in part based on evidence obtained through the employer accessing documents or messages stored on the devices provided by the employer and not identified as personal. As stated by the judges, employers have free access to the content of the professional devices provided to their employees, except for content stored in files identified as personal. Such content (documents, files, emails, SMS, WhatsApp messages) can be validly produced in court.

On the other hand, employers must respect the employees’ right to privacy and secrecy of private correspondence. Employers may only access employees’ documents and messages identified as personal under certain conditions, i.e. in the employee’s presence or after inviting the employee to be present, or in the employee’s absence in case of a specific risk for the company, in which case it is strongly advised to have this ascertained by a bailiff. Access to an employee’s documents and messages identified as personal is also authorized in case of a judicial investigation (e.g. if an employee is suspected of stealing company secrets) or if the employer has obtained a court decision authorizing access to these messages.

    At a time when the border between the personal and professional spheres is increasingly blurred and when some employees even use their own devices to perform professional tasks, it is necessary to get back to best practices and separate professional from private documents and messages. Private documents will be stored in files identified as “Personal” or “Private” (using My Documents to identify personal documents is not sufficient). Personal messages, including emails, chat, sms, or Whatsapp messages (or similar services) should either be identified as personal or private or sent using one’s personal computer or mobile phone.

Employers are strongly advised to have a technology charter which is up-to-date, and which is also duly communicated to the work force.

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(1) CA Paris, Pôle 1 ch. 2, arrêt du 20 avril 2023, Coffim Auvergne Rhône Alpes c. MM W, X, Y, Z et Kaufman & Broad

(2) Cass. com., 10 février 2015, n°13-14.779, GFI Securities Ltd c. Newedge Group

(3) Cass. soc., 18 octobre 2006, n°04-48.025, M. Le X. c. Techni-Soft

(4) Cass. soc., 12 février 2013, n°11-28.649, Mme. X. c. PBS


Deleporte Wentz Avocat

Octobre 2023