French Supreme Court rules that clandestine recordings are not systematically considered inadmissible proof
Who hasn’t been tempted to secretly record their manager, in order to build a case of, for instance, difficult working conditions or contest a dismissal in court?
Until today, this type of evidence has generally been rejected by judges as disloyal, on the basis of a well-known case from the Cour de cassation (French Supreme Court), according to which the production of evidence gathered without the person’s knowledge or obtained through a maneuver or stratagem is inadmissible (Cass Ass. plén. January 7, 2011, n°s 09-14.316 and 09-14.667).
The difficulty arises from the fact that several fundamental rights conflict when clandestine recordings are produced in court:
- Freedom of evidence, which is essential to build a strong case
- The right to privacy, and the principle of fairness in the administration of evidence.
Today, the Assemblée plénière of the Cour de cassation (the most important and solemn assembly in France) has reversed its case law. The scope of this decision encompasses all civil litigation.
The court ruled that clandestine recordings are not inadmissible, under two conditions:
- The production of such unfair evidence must be indispensable to the exercise of the rights of the defense
- he infringement of rights (in particular, the protection of privacy) that such production may entail must be strictly proportionate to the aim pursued.
The appreciation of these criteria is left to the discretion of the judge.
It is therefore advisable to remain very vigilant, particularly in the workplace, as it is not impossible for clever colleagues to record certain conversations and produce them as evidence in court – with succes.
Cass Ass. plén. December 22, 2023 n° 20-20.648