L’usage dans l’entreprise du courrier électronique, de la connexions internet et la gestion des fichiers numériques est tellement évident qu’on ne se pose pas la question du caractère professionnel ou privé de ce qui en est fait. Et pourtant … Analyse d’un arrêt de la Chambre sociale de la Cour de cassation de 2009 sur ce sujet.

Depuis 2009, la Chambre sociale de la Cour de cassation a amorcé une tendance à la généralisation du principe de présomption du caractère professionnel, d’abord des fichiers de salariés[1], mais aussi, des connexions internet[2] et des favoris[3]. Elle s’est également prononcée en faveur de l’application de cette présomption aux emails[4]. Grâce à une nouvelle série d’arrêts de la cour régulatrice depuis décembre 2010, ce principe semble être désormais clairement entériné.

Quelles sont les conséquences pratiques de cette tendance ? Quelles sont aujourd’hui les conditions d’accès et de contrôle par l’employeur des emails de salariés sur leur lieu de travail ?

Rappel des principes jurisprudentiels. –Les principes applicables en la matière, façonnés depuis une dizaine d’années par la jurisprudence (depuis le fameux arrêt « Nikon »[5]), sont les suivants :l’employeur a le droit de contrôler le contenu des emails et fichiers de ses salariés à condition que ceux-ci ne soient pas personnels. S’ils sont identifiés comme personnels, les conditions de leur contrôle sont limitées et strictement encadrées : l’employeur ne pourra les contrôler que (i) si le salarié est présent ou dûment convoqué, ou (ii) hors la présence du salarié, s’il y a un « risque ou événement particulier », depuis l’arrêt « Cathnet »[6], ou enfin (iii) sur requête auprès du président du Tribunal de grande instance sur le fondement de l’article 145 du Code de procédure civile, si l’employeur peut arguer d’un motif légitime de suspecter des actes de son salarié portant atteinte à ses droits[7].

La qualification d’email « personnel », seul moyen d’exclure la présomption de caractère professionnel – On comprend dès lors que tout l’enjeu pour le salarié est de justifier du caractère « personnel » de ses emails (et fichiers), afin de bénéficier de la protection de sa vie privée sur son lieu de travail et de restreindre le droit d’accès et de contrôle de son employeur. Mais outre le fait que cette qualification doit se faire de bonne foi, le juge la retient beaucoup moins facilement qu’auparavant.

Seule  la mention « personnel » est recevable. – Dans l’arrêt de la Chambre sociale en date du 15 décembre 2010, le pourvoi d’un salarié formé à l’encontre de l’arrêt de la cour d’appel de Paris, qui avait infirmé le jugement de la juridiction prud’homale ayant conclu à un licenciement abusif, a été rejeté. Le demandeur au pourvoi faisait valoir que l’employeur aurait consulté, pour fonder son licenciement, des e-mails personnels du salarié en dehors même des conditions traditionnellement posées par la jurisprudence pour ce faire. Mais les arguments classiques du « respect de l’intimité de la vie privée » du salarié et du « secret des correspondances » ont été rejetés. Commençant par rappeler, pour le confirmer, le principe selon lequel « les courriers adressés par le salarié à l’aide de l’outil informatique mis à sa disposition par l’employeur pour les besoins de son travail sont présumés avoir un caractère professionnel en sorte que l’employeur est en droit de les ouvrir hors la présence de l’intéressé, sauf si le salarié les identifie comme étant personnels »[8], la Cour de cassation en a déduit que si les juges du fond avaient constaté que « les courriers figurant sur la boîte électronique professionnelle du salarié ne portaient aucun mention comme étant personnels », ils pouvaient légitimement en déduire que ces courriers pouvaient être régulièrement ouverts par l’employeur.

Il est donc désormais établi que la notion d’email « personnel » doit être interprétée de manière stricte. Les emails et fichiers adressés par le salarié à l’aide de l’outil informatique mis à sa disposition par l’employeur pour les besoins de son travailsont couverts par défaut par  une présomption de caractère professionnel, qui ne peut être combattue avec de simples indices, comme en témoignent encore deux nouveaux arrêts de la Cour régulatrice.

De simples indices ne suffisent pas pour retenir la qualification de « personnel ».

 Dans deux arrêts en date du 2 février 2011[9]rendus dans les mêmes termes, la Cour de cassation a de nouveau affirmé sa position dans une affaire de licenciement de deux salariés de la société Securitas France. Le licenciement avait été prononcé notamment sur la base d’un email litigieux échangé entre eux et dont ils invoquaient la nature privé sur la base d’un certain nombres d’indices. Pour décider que ces emails ne revêtaient pas un caractère privé, la Cour de cassation rejette la prise en compte d’indices tels que le contenu du courriel (le demandeur au pourvoi avait soulevé l’argument selon lequel il s’agissait « d’une conversation totalement privée dont la liberté de ton et les outrances éventuelles relevaient uniquement de la vie personnelle et intime à laquelle le salarié a droit même sur son lieu de travail »), l’identité du destinataire (les deux salariés ayant échangé les emails litigieux étant « compagnons dans la vie » et « le contenu du courriel envoyé ainsi que sa réponse apparaissaient [donc] en relation avec l’entourage du salarié ») ou encore l’absence de diffusion générale des messages (puisque comme le souligne le demandeur au pourvoi, les propos étaient destinés à rester entre les deux interlocuteurs et non pas à être diffusés).

La Cour de Cassation confirme la décision des juges du fond qui avaient relevé que le courriel litigieux utilisé par l’employeur « était en rapport avec l’activité professionnelle du salarié », « ilne revêtait pas un caractère privé et pouvait être retenu au soutien d’une procédure disciplinaire ».

Enseignements Pratiques à retenir

Le salarié, tout d’abord, ne devra retenir qu’une chose :apposer la mention « personnel » sur tous les écrits relevant de la sphère de sa vie privée ou n’utiliser qu’une messagerie distincte du type « hotmail » pour l’envoi de ses courriels personnels. Compte tenu de la jurisprudence restrictive de la Cour de cassation depuis 2009 (l’utilisation des initiales du salarié ou encore l’utilisation de son seul prénom pour classer des fichiers personnels n’ayant été pas considérés comme suffisamment explicites pour faire tomber la présomption de caractère professionnel[10]), il est recommandé de s’en tenir à la seule mention « personnel » pour bénéficier du droit au respect de leur vie privée. Il conviendra également de veiller à ce que cette identification se fasse en respectant l’obligation de loyauté à laquelle tout salarié est tenu en vertu de son contrat de travail.

L’employeur, de son côté, ne devra pas s’affranchir, malgré le renforcement en sa faveur du régime du contrôle, du respect de précautions préalables, sous peine d’inopposabilité des moyens de preuve collectés à travers le contrôle. En plus de la nécessité d’écarter du champ du contrôle,  les emails ou fichiers identifiés comme personnels, il devra être en mesure de démontrer qu’il a respecté les principes suivants : (i) le principe de finalité légitime, lui imposant de ne mettre en œuvre un contrôle que pour préserver les intérêts de son entreprise ou assurer le bon fonctionnement du réseau et la sécurité du système d’information, (ii) le principe de proportionnalité dans le contrôle, lui imposant d’adapter le contrôle au niveau de risque auquel la société est confrontée, et (iii) le principe de transparence, lui imposant d’informer les salariés de l’éventualité de tels contrôles et de respecter l’ensemble des obligations découlant de la loi informatique et libertés du 6 janvier 1978 (Déclaration, obligation de sécurité et de conservation limitée des données collectées dans le cadre du contrôle).

Bon tout ça donne envie de se lancer à son compte, non ? Je vous y aide pas à pas avec les tutoriels gratuits ci- après :

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[1]Cass. Ch. Soc., 8 décembre 2009

[2]Cass. Ch. Soc., 18 mars 2009 Eric P/ Lauzin

[3]Cass. Ch. Soc., 9 février 2010, M. X. c/ Association Relais jeunes Charpennes

[4]Cass. Ch. Soc., 17 juin 2009, Sanofi Chimie et Cass. Soc, 15 décembre 2009

[5]Soc., 2 oct. 2001, D. 2001 p. 3148.

[6]Soc. 17 mai 2005, JCP E 2005 p. 2237.

[7]A notre connaissance, le motif légitime n’a été retenu que dans des cas de suspicions par l’employeur d’actes de concurrence déloyale, v. Soc. 23 mai 2007, JCP E 2007 p. 13 et Soc. 10 juin 2008, JCP E 2009, p. 23.

[8]Cette formule est utilisée depuis l’arrêt Jalma (Soc, 18 oct. 2006, Gaz. Pal. 2006 et Soc. 21 oct. 2009 et 8 déc. 2009, préc.).

[9]Cass. Ch. Soc, 2 février 2011, deux arrêts Société Sécuritas France, pourvois n° 09-72.449 et n° 09-72.450, cassant les arrêts de la Cour d’appel de Paris, Pôle 6, ch. 10, du 20 octobre 2009, n°07/08282 et n°07/08175.

[10]Soc. 21 oct. 2009 et 8 déc. 2009, préc.

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