Employer pays a high price for reading private Whatsapp and G-mail messages

What is the price of illegally obtained evidence? This question could be asked following a judgment of the Amsterdam district court of 12 May 2014.

An employer had asked an employee, who had just given notice to terminate his employment agreement, to leave his personal laptop and his private phone at work for a software update. The employer subsequently read the private messages of the employee in G-mail and Whatsapp. The employer then discovered that the employee had violated the confidentiality clause and the side activities clause, i.a. by sending confidential business information of the employer to his future employer. The employer summarily dismissed the employee.

The employee claims that the evidence has been obtained illegally, because his right to privacy has been breached. He, therefore, takes the view that the evidence cannot be taken into consideration in the assessment of the dismissal, and that the employer has to pay him damages of € 10,000.

The court decides that the evidence has indeed been obtained illegally and in addition considers it important that the employer had no good reason for inspecting the private messages of the employee. The fact is that there was no specific suspicion that the employee had violated any agreements. The court is of the opinion that the summary dismissal has been given with good reason, but does order the employer to pay the employee damages of € 7,500. By doing so, the court wants to prevent that the doctrine that evidence can be provided by all legal means available (vrije bewijsleer) is eroded, and that employers too easily violate the rights of privacy of their employees.

In civil procedural law, the doctrine that evidence can be provided by all legal means available applies. This means that in principle all articles of evidence are allowed and that the court decides what value is attached to the evidence. Illegally obtained evidence is, therefore, in principle allowed in civil proceedings. According to the Supreme Court, also the evidence that has been obtained through violation of the right of privacy of the employee can be taken into consideration. Nevertheless, in special circumstances, some judges disregard illegally obtained evidence. In this case, the court decided that there were no such special circumstances. The surprising aspect of this decision is that the employer is punished in a different way for the illegally obtained evidence, namely by having to pay damages to the employee. If this decision will be followed by other courts, the question will be as to how the price of illegally obtained evidence will have to be established.

Source: District Court Amsterdam 12 May 2014, ECLI:NL:RBAMS:2014:2751


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