The Greek Supreme Civil Court rules in favor of the employer’s right to recover from company computers, files of former employees in order to safeguard judicial protection and its business freedom

By judgment no. 1/2017, the Greek Supreme Court in plenary session, following referral from its A2 civil court chamber, examined two questions: (a) the extent of the constitutional protection of communications and in particular whether such protection is to be restricted to the actual time that the communication takes place or whether it also extends to its subsequent stage and (b) if the constitutional protection of communications applies when an employee, using a computer provided by the employer, creates and uses, in addition to the business e-mail address provided by the employer, a personal e-mail address and takes measures that exclude access to such e-mail address of any third party and uses such e-mail address to send and receive e-mails that do not concern the employee’s private life in strict sense, but relate to unfair and harmful, to the employer’s business interests, acts.

In this particular case the employer searched for and recovered files from the hard drive of company computers used by former company employees, following their refusal to deliver to the employer the relevant documents -either in hard copies or electronic files-, in order for the employer to continue uninterrupted its business. The Court ruled that since the files under examination were not intercepted during the communication and were not extracted from the personal electronic archives of the resigned former employees by breaking their secret password, these files were not covered by confidentiality and did not fall within the ambit of paragraph 1 of article 19 of the Greek Constitution.

Furthermore, the recovered files included not only employer’s documents, but also (personal) electronic messages and letters, sent by the former employees to third parties -employer’s clients, competitors as well as suppliers- while preparing their resignation. The Court ruled that even though closely related to the employer’s commercial and business activity, said correspondence is “personal” “private”, and as such falls within the meaning of “private life”, since it aimed at serving the personal interests of the former employees (albeit to the expense of the employer’s interests) and therefore falls within the ambit of article 9 para.1 of the Greek Constitution and article 8 of ECHR. With regards to the information contained in the files recovered by the company computers used by the former employees, even though it concerned employer’s business and affairs, the Court ruled that it constitutes personal data of the employees, because such electronic communication and exchange of critical information primarily serves the personal interests and plans of the employees and therefore falls within the ambit of article 9A of the Greek Constitution.

Subsequently, the Court took into account the following facts: the relevant files contained documents and other data which the former employees prepared, sent and/or received in their work place by using company computers; they did not use a personal e-mail address, but company e-mail address provided by the employer to use in the context of their work; there was no question of supervision or surveillance in any way of the former employees during their work; Instead the company computers were inspected after their resignation and their refusal to deliver the files used while working for their employer; the relevant data were not “sensitive” in the sense of law 2472/1997 (article 2.b); and the employer, by collecting and processing the personal data, aimed not only at protecting its rights and interests (article 5 para.1 of the Greek Constitution) but also at safeguarding its commercial faith and, in the end, at protecting free competition.

On the basis of the above, the Court ruled that by disclosing the relevant data in order to exercise the right to judicial protection (article 20 para.1 of the Greek Constitution) to safeguard the right to business freedom (articles 5 and 106 para.2 of the Greek Constitution), the employer acted in a fair way in every respect.  On the other hand, invoking the rights to personal life and protection of personal data under articles 9 and 9A of the Greek Constitution and article 8 of the ECHR was unfair, since by exercising those rights the former employees violated the clearly superior rights of the employer.  Such rights were the employer’s rights deriving from article 5 para.1 of the Greek Constitution and in general safeguarding commercial faith and free competition. To defend those rights before court (article 20 para.1 of the Greek Constitution), it was necessary to prove the breach of contract and the unfair and detrimental to the employer behavior of its former employees.  The Court came to the conclusion that the recovery of the files from the company computers the employees uses and the use of such files before court was lawful.