French employment law - Preliminary meeting to dismissal : its recording does not constitute an invasion of privacy (cass. crim. April 12th 2023, n°22-83.581)
-In a decision of April 12th, 2023 (° 22-83.581), the Criminal Division of the Court of Cassation ruled that the recording of an interview prior to dismissal without the knowledge of the employer is not likely to to infringe his privacy, even though the remarks were made in a private place.
Analysis
Article 226-1 of the French Penal Code provides that:
"Is punished by one year's imprisonment and a fine of €45,000 the fact, by means of any process whatsoever, of deliberately infringing the intimacy of the private life of others:
1° By capturing, recording or transmitting, without the consent of their author, words spoken privately or confidentially; […]”
In this case, to dismiss the appeal lodged by the Director General, the Court of Cassation considers that the recording of the preliminary interview is not such as to infringe the intimacy of his private life because the interview falls within the scope of the plaintiff's sole professional activity.
This solution is not new, the criminal chamber has already adopted the same solution for similar facts in a judgment dated January 16, 1990 (n°89-83.075).
This solution was also adopted by the Court of Cassation, in a judgment of February 14, 2006 (n°05-84.384), concerning the recording of telephone conversations with former work colleagues.
In addition, the recording of the prior interview could be used as a mode of proof.
Indeed, if in principle recording a person without their knowledge is an unfair process and therefore an inadmissible mode of proof, case law sometimes allows the production of unfair evidence under the right to evidence.
Thus, unfair evidence may be accepted if it is necessary for the exercise of the right to evidence, and if the harm it causes is proportionate to the aim pursued (Cass. soc., September 30, 2020, n°19- 12.058).
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Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
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