The social chamber of the “Cour de cassation”, the highest Court in France, clarified in a decision handed down on the 5th of March 2008 the limits that apply to a trade union’s right of expression on its website.

 

A trade union had disseminated on the Internet information in relation with the profitability of a company and its wage negotiations. The company in question considered that this information was confidential; it sued the trade union to obtain as an interim measure its deletion.

 

To dismiss this request the Court of Appeals of Paris held that the trade union had a right of expression, like any other citizen, and that it was not bound by the duty of confidentiality specific to employees, members of the works council or experts of the council, insofar that it was not related to the company.

 

The social chamber of the “Cour de cassation” reversed the decision on two grounds:

 

1- According to paragraph 2 of article 10 on freedom of expression of the European convention on human rights (ECHR)[1], restrictions may be prescribed by law when they are necessary to the protection of rights of others, especially to prevent the disclosure of information received in confidence, if they are proportionate to the legitimate aim perused.

 

2- Section 1 [2] of the law to build confidence in the digital economy (LCEN) nº2004-575 of the 21st of June 2004 provides that freedom of electronic communication may be restricted to the extent that it is required particularly for the protection of freedom and property of others.

 

Thus, the trade union had the right to communicate freely this information to the public on a website; this freedom may be restricted insofar as it is necessary to prevent disclosure of confidential information that would undermine rights of third parties.

Author : Anne-Katel MARTINEAU Attorney, Paris Bar.  

 

 

 

 

 

 

 

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NOTE

[1] “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”.

[2] “As it is stated in the first section of law nº86-1067 of the 30th of Septembre 1986 concerning freedom of communication, communication with the public by electronic means is free.

Exercise of this right may only be limited insofar as it is required, on the one hand, by respect for human dignity, freedom and property of others, the pluralist nature of the expression of schools of thought and opinion, and on the other hand, the safeguarding of public order, by the interests of national defense, by the demands of public services, by the constraints inherent to means of communication, as well as the necessity, for audiovisual services, to develop audiovisual production.

Communication with the public by electronic means refers to the provision for the public or categories of public, by a process of electronic communication, of signs, signals, writings, pictures, sounds or messages of any kind which do not have the character of a private correspondence.

Communication with the public online refers to any transmission, on a personal request, of digital data which does not have the character of a private correspondence, by a process of electronic communication enabling a mutual exchange of information between the transmitter and the receiver.

Electronic mail refers to any message, in the form of text, voice, sound or picture, sent over a public communication network, stored on a server of a network or on the recipient’s terminal equipment, until the latter retrieves it”.