IT Seizures and Employee Privacy: The Requirement for Individual Notification
In a judgment handed down on 16 April 2026, the French Supreme Court (Cour de cassation) clarified the safeguards applicable where an application for the seizure of documents extends to an employee’s personal devices or personal email account under Article 145 of the French Code of Civil Procedure. In such circumstances, the employee must be personally served with a copy of both the application and the court order to ensure the effective exercise of their rights and the protection of their privacy.
In the case before the Court, two companies had obtained an ex parte order pursuant to Article 145 of the French Code of Civil Procedure, authorising a judicial officer (Commissaire de justice) to enter the premises of a third-party company and seize various documents. The order also authorised the judicial officer to access an employee’s personal computers and personal email account.
Article 495(3) of the French Code of Civil Procedure requires the judicial officer carrying out the measure to provide a copy of the application and the order to “the person against whom the measure is enforced”, namely the individual who is required to comply with the measure, irrespective of whether that person may subsequently become a defendant in the contemplated proceedings.
In this case, the Amiens Court of Appeal found that, although the order had been served on the employee, it had been served solely in his capacity as an authorised representative of the company and not in his personal capacity as the individual directly affected by and required to comply with the measure. The Court therefore ordered that the ex parte order be set aside.
In its decision of 16 April 2026 (see judgment), the Second Civil Chamber of the Cour de cassation, relying on Article 8 of the European Convention on Human Rights, which guarantees the right to respect for private life, held that:
“The person required to comply with a measure carried out at a company’s registered office also includes the company’s employee where the order authorises the judicial officer, after confirming the employee’s presence, to access not only the company’s servers and computer systems but also the employee’s personal computers and personal email account.”
Accordingly, the Court confirmed that a copy of the application and of the order issued under Article 145 must be personally served on the employee targeted by the measure.
In doing so, the Court strengthens the protection afforded to employees who are the subject of pre-trial investigative measures (mesures d’instruction in futurum).
Case Reference:
French Supreme Court (Cour de cassation), Second Civil Chamber, 16 April 2026, No. 23-12.123.