Tuesday, 2 October 2007

SMS messages may be used as evidence in court

Cour de Cassation (Social Chamber), 23 May 2007, SCP L.-A. et autre v Mme L. Y., n° 06-43.209

Ms Y. was dismissed from her employment for having committed a serious fault. She brought the case before the labour court (‘Conseil de prud’hommes’) challenging her dismissal and complaining about sexual harassment.

The Court of Appeal of Anger held that Ms Y. established that she had been harassed and condemned the employer to pay damages. Ms Y. used as evidence a telephone conversation, which was recorded without the knowledge of the person in question –Mr X.–, as well as SMS messages sent to her by Mr X. The employer and Mr X. challenged the admissibility of this means of evidence and appealed to the Cour de Cassation (the French Supreme Court for civil and criminal matters).

Before the Cour de Cassation, the employer and Mr X argued that since the recording was carried out without the knowledge of the person making the call, it constituted unfair means of proof rendering the evidence inadmissible in court. They therefore argued that the Court of Appeal, by using these elements to justify its judgement, violated Articles 9 of the Code of Civil Procedure (which provides that ‘Each party must prove, according to the law, the facts necessary for the success of his claim’) and 6 of the European Convention on Human Rights. As regards the SMS messages, Mr X. argued that he did not have the burden of proving that he was not the one who used the phone to send the messages.

Concerning the recording of a private conversation carried out without the knowledge of the person making the call, the Cour de Cassation held that it constitutes an unfair means and that such evidence is therefore inadmissible in court. However, the Supreme Court held that the person sending the SMS had to be aware that messages are stored in the phone of the recipient. The SMS was therefore an admissible means of proof.

The Supreme Court therefore approved the Court of Appeal for ruling that the written messages sent to the employee established the existence of harassment.