The Review Of e-Mails By Companies: About The Supreme Court Ruling On February 8th 2018

Analysis of the February 8th 2018 Supreme Court ruling

Following the judgment of the European Court of Human Rights (Grand Chamber) of 5 September 2017 (Barbulescu II v. Romania), legal operators were waiting for the Supreme Court to rule on the possible legality of the employer's access to the corporate e-mails of its employees and, therefore, on the feasibility of using them as evidence to substantiate disciplinary business decisions.

Well, to a certain extent, the question has been cleared up. The Social Chamber of the Supreme Court in its ruling of 8 February 2018 (Inditex case; RCUD 1121/2015) states that the doctrine of the European Court does not add anything substantial to the traditional jurisprudential doctrine of the Supreme Court or to that developed by the Constitutional Court.

The background of the case being prosecuted was:

1. - Within the company, there were specific corporate 'information systems' and an 'information security policy' regulation for the group, which limited the use of the company's computers to strict work purposes and therefore prohibited their use for personal matters.

2. - Each time the employees accessed the company's computer systems from their own computer, and prior to such access, they had to accept the guidelines established in the group's information security policy, which stated that access was for strictly professional purposes, and the company reserved the right to adopt the necessary monitoring and control measures to verify the correct use of the tools it made available to its employees, The complainant was therefore aware that he could not use the mail for any particular purpose and that the company could monitor compliance with the guidelines in the use of the information technology provided by it.

3. - The examination of the computer used by the actioning employee was agreed following the "accidental discovery" of two photocopies of bank transfers made by a supplier of the company in favour to the plaintiff for a total amount of €50,000 (one direct for €11,000 and the other for €39,000 from a car dealership), which were used to purchase a Mercedes X6. This fact is expressly prohibited in the company's code of conduct and imputed in the dismissal letter.

4. - From 2008 to 2013, the supplier invoiced the company 32,899,913 dollars. Of this total amount, $15,734,080 was invoiced for purchases made from that supplier by the claimant. From 2011 to 2013, the supplier invoiced the Group 6,379,733...