France: disclosure of a confidential fashion collection by an employee

In 2010, Petit Bateau (a French brand of clothing for children) hired Ms. A as an export project manager. The employment contract contained a confidentiality clause. By letter of May 15, 2014, Ms. A was dismissed for serious misconduct, particularly for having breached her confidentiality obligation by posting, on April 22, 2014, on her Facebook account, a photograph of the coming spring/summer 2015 collection. By doing so, Ms. A disclosed the collection to 200 professional “friends” some of whom worked for competing companies.

The main question was: how did Petit Bateau find out about this disclosure? According to the employer, another employee of the company, who was one of the 200 “friends”, spontaneously alerted Petit Bateau by email. As Ms. A denied being the holder of the concerned Facebook account, Petit Bateau appointed a bailiff who certified the contrary. As a result, Ms. A contested the conditions under which she was dismissed, arguing that the collection of evidence was unfair under French law. According to her, the evidence was, therefore, inadmissible.

In a judgment of December 12, 2018, the Paris Court of Appeal considered, on the contrary, that the process of obtaining evidence was not unfair and that the disclosure of the photograph constituted a breach of the employee’s obligation of confidentiality.

Ms. A lodged an appeal on law points before the Cour de cassation, maintaining that the process of obtaining evidence was unfair. The court rendered its judgment on September 30, 2020. First, the court recalled that the employer could not resort to a trick to collect evidence. Secondly, the court recalled that the right to evidence might justify the production of material infringing on privacy, provided that i) this production is essential for the exercise of this right and ii) that the infringement is proportionate to the aim pursued. The court deduced the following:

“[T]he production in court by the employer of a photograph taken from the employee’s private Facebook account, to which he was not authorized to access, and elements of identification of the professional fashion “friends” recipients of this publication, constituted an invasion of the employee’s privacy”.

However, the Cour de cassation noted, as the Court of Appeal had done, that “the employer had confined itself to producing the photograph of the future collection of the company published by the employee on her Facebook account and the professional profiles of some of her “friends” working in the same sector of activity and that the employer had made a bailiff’s report only to thwart the employee’s argument as to the identification of the account holder.”

Taking into account the circumstances, the judges considered that, in the present case, “the production of evidence which undermines the private life of the employee was essential to the exercise of the right to evidence and proportionate to the aim pursued, namely the defense of the legitimate interest of the employer to the confidentiality of his activities“.

Cour de cassation, Chambre sociale, September 30, 2020, No. 19-12.058: Legifrance.gouv.fr (in French)

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